The Issue Whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant hereto, Respondent, Diahann James, held license numbered 1266532 as a registered nurse (RN) and held license numbered 36309-1 as a practical nurse (PN). Both of these licenses had been issued to Respondent by Petitioner and entitled Respondent to engage in the practice of nursing within the scope of her licensure in the State of Florida. Respondent's RN license was, at the time of the formal hearing, suspended following Petitioner's order of suspension entered December 13, 1990. This suspension was based on Respondent's alleged failure to comply with the terms of her previously established probation. Respondent's PN license has been on an inactive status since April 1, 1983. Respondent has until April 1, 1993, to seek reactivation of her PN license pursuant to Rule 210-14.005(1), Florida Administrative Code. Unless reactivated, her PN license will permanently expire after April 1, 1993. On February 15, 1985, Respondent's RN license was suspended pursuant to an order entered by the Board of Nursing (Board) as the disposition of the Department of Professional Regulation's (DPR) Administrative Complaint Number 0051651. On June 23, 1986, Respondent's RN license was conditionally reinstated pursuant to an order of the board, contingent upon Respondent's submission of a favorable psychological evaluation. On August 11, 1986, Respondent submitted a satisfactory psychological evaluation and her license was reinstated effective August 27, 1986. Upon reinstatement, Respondent's RN license was placed on probation for a period of two years subject to specific terms and conditions. Respondent did not submit the quarterly reports required by the terms of her probation and the Board filed a complaint with DPR against Respondent on April 22, 1988, based on her failure to comply with the terms of her probation. On October 18, 1988, DPR filed Administrative Complaint 0098524 against Respondent based on the complaint the Board had filed on April 22, 1988. On April 1, 1989, Respondent's RN license 1266532 became inactive due to Respondent's failure to apply for renewal. In May 1989, Respondent applied for reactivation of her RN license. Accompanying this application was an affidavit that Respondent had executed on April 3, 1989. This affidavit affirmed that she had earned the continuing education hours during 1987-89 to meet the requirements set by DPR for renewal of her license. At the Board's request, Respondent submitted copies of continuing education certificates from Psycho- Awareness Continuing Education Provider as documentation that she had met the continuing education requirements as represented by her affidavit dated April 3, 1989. The continuing education certificates submitted by Respondent had been altered to reflect her participation and attendance at these continuing education programs in 1988. Respondent attended these programs not in 1988 (which would have met the continuing education requirements), but in 1986 (which would not meet the continuing education requirements). The affidavit Respondent signed on April 3, 1988, was false, and the certificates she submitted in support of that affidavit were altered. Respondent's submitted continuing education certificates were deemed to be forgeries by the Board. On June 23, 1989, Respondent was advised that her continuing education certificates were unacceptable, that her license remained on an inactive status, and that she was not entitled to work as a nurse. In July 1989, Respondent worked as a registered nurse at Cedars Medical Center, Miami, Florida. Respondent did not inform the Board's probation supervisor of her employment at Cedars Medical Center, even though the terms of her probation required her to do so. Respondent answered "no" on the Cedars Medical Center employment application to the question of whether her license had ever been revoked, suspended, or placed on probation. At no time during the term of her employment at Cedars Medical Center did she reveal that her licensure was on an inactive status and on probation. During the course of her employment at Cedars Medical Center on July 11-12, 1989, and on July 25-26, 1989, (these events occurred during the night shift) Respondent wrote telephone orders, allegedly from physicians, for various medications for several different patients. Respondent signed at least two of said telephone orders with the name of "L. Hemingway", a coworker. Respondent submitted these telephone orders to the pharmacy and obtained various medications, including controlled substances. The physicians named by Respondent on the telephone orders denied giving Respondent authorization to order those medications on the dates specified, and none of said orders were an existing part of the patients' records. On July 28, 1989, Respondent was confronted by her superiors regarding the numerous discrepancies that had been discovered through the pharmacy regarding her deviation from the normal procedure for obtaining and administering medications. Respondent denied any diversion of drugs and further denied writing the fraudulent telephone orders. Respondent was then asked to submit to a urine test, and she submitted a urine sample under controlled conditions. The urine sample was thereafter tested using appropriate methodology and equipment. Her urine tested positive for cocaine, meperidine (Demerol, a schedule II controlled substance, and pentazocine (Talwin, a schedule IV controlled substance). Respondent did not produce any valid prescriptions to account for the positive results of her urinalysis. On August 1, 1989, Respondent's employment at Cedars Medical Center was terminated. On July 28, 1989, the Board filed a Final Order in DPR case 0098524, the case DPR had filed against Respondent's RN license on October 18, 1988. This Final Order extended Respondent's existing probation for a period of two years and imposed conditions of probation similar to those initially imposed on August 27, 1986. On August 27, 1989, Respondent's RN license, which had been on an inactive status since April 1, 1989, was reactivated, but remained on probationary status. In December 1989, Respondent was employed at Doctors Hospital, Coral Gables, Florida, as a registered nurse. Respondent failed to inform her probation supervisor of her employment as a nurse, though she was required to do so by the terms of her probation. On December 4-5, 1989, Respondent worked the 11 p.m. to 7 a.m. shift at Doctors Hospital. The narcotic records on which Respondent signed out for narcotics for patients under her care and the medication record on which she charted the medication for these patients were falsified to reflect that these patients had received more narcotics than had actually been administered to them. These false records, for which Respondent was responsible, permitted Respondent to obtain excess narcotics from the hospital's pharmacy. On January 18, 1990, Respondent rendered a urine specimen for drug analysis pursuant to the terms of her probation. The subsequent analysis tested positive for propoxyphene (Darvone, a schedule IV controlled substance). Respondent provided no valid prescription to account for the positive result of her urinalysis. On March 1-2, 1990, Respondent was employed at Coral Gables Hospital, Coral Gables, Florida. Respondent failed to inform her probation supervisor of her employment, although she was required to do so by the terms of her probation. While working the 11 p.m. to 7 a.m. shift at Coral Gables Hospital, on March 1, 1990, Respondent admitted to her nursing supervisor that she had self-administered 150 mg. of Demerol. Respondent was accompanied to the Emergency Room where she received medical assistance. The nursing supervisor immediately began a review of Respondent's patients' charts. From this review, it was established that Respondent had obtained 250 mg. of Demerol, and that the patients for whom Respondent had signed out the narcotics did not possess physicians' orders for same. Respondent falsely charted on the medical records of two patients the administration of Demerol. On March 8, 1990, Respondent rendered a serum sample for drug analysis at the request of Coral Gables Hospital. Said specimen subsequently tested positive for the presence of Demerol. On July 15, 1990, Respondent rendered a urine specimen for drug analysis, pursuant to the terms of her probation. The preliminary results of that testing detected the presence of certain controlled substances and were classified as presumptive positive. The specimen Respondent had given was not of sufficient quantity to permit the completion of testing, and the preliminary findings were not confirmed. On December 13, 1990, Respondent's R.N. license was suspended due to her failure to comply with the terms of her probation. Based on the expert testimony presented at the formal hearing, it is found that Respondent is an impaired individual suffering from chemical dependency; that Respondent's practice of nursing is below the minimum standard of safe patient care for the State of Florida; and that Respondent is unable to practice nursing with reasonable skill and safety to patients because of her chemical dependency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which revokes Respondent, Diahann James's license as a registered nurse (number 1266532) and which revokes her license as a practical nurse (number 36309-1). DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July, 1991. CLAUDE B. ARRINGTON 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 18th day of July, 1991. APPENDIX The proposed findings of fact submitted on behalf of the Petitioner are adopted in material part by the Recommended Order. The only post-hearing submittals by Respondent were in the form of two brief letters addressed to the undersigned, one filed May 8, 1991, and the other filed May 30, 1991. To the extent that either letter is construed to contain proposed findings of fact, those proposed findings are rejected as being either irrelevant, unsupported by the record, or contrary to the findings made. COPIES FURNISHED: Tracey S. Hartman, Esquire Roberta Fenner, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Diahann L. James 676 N.W. 48th Street, No. 4 Miami, Florida 33127 Judie Ritter, Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent engaged in unprofessional conduct and, if so, what disciplinary action should be imposed on her 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. At all times relevant to this proceeding, Respondent was a licensed practical nurse in the State of Florida, holding license no. PN 0986101. Respondent has been so licensed since 1990. At all times relevant to this proceeding, Respondent was employed in the office of Dr. David Flick, M.D., an oncologist. On October 17, 1995, Dr. Flick wrote a prescription for Fiorinal for Katherine Filan, who on that date, was an employee of Dr. Flick. The prescription authorized one refill. On or about January 12, 1996, in response to an inquiry from a pharmacy, Respondent approved a refill of the prescription for Fiorinal for Katherine Filan, without first consulting Dr. Flick. According to Dr. Flick, at all times pertinent to this proceeding, the general policy in his office was that he approved all refills. This policy was unwritten and was not effectively communicated to employees. Respondent and one other licensed practical nurse, formerly employed as a nurse in Dr. Flick's office, provided credible testimony that nurses in Dr. Flick's office were allowed to refill prescriptions, except for narcotics. However, when nurses authorized such refills, the policy was that the refills were to be documented and charted. Respondent believed that her action of authorizing the refill of Ms. Filan's prescription was consistent with the practice and policy of Dr. Flick's office. Moreover, Respondent believed that her approval of the refill was permitted because Dr. Flick had expressly authorized one refill on the original prescription he had written. No evidence was presented that Ms. Filan had refilled the prescription prior to January 12, 1996. After Respondent authorized the refill of the prescription for Ms. Filan, she failed to record the refill authorization on the any medical records. Respondent maintains that her failure to document the refill was inadvertent and was the result of her being extremely busy that day. On the day that Respondent authorized the refill, she was the only chemotherapy nurse on duty, was taking care of patients, and taking incoming nurse's calls. Except for this proceeding, Respondent has never been the subject of a disciplinary proceeding related to her nursing license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is REOMMENDED that the Department of Health, Board of Nursing, enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 17th day of February, 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 17th day of February, 1999. COPIES FURNISHED: Sam Power, Agency Clerk Agency of Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency of Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Howard M. Bernstein, Esquire Agency for Health Care Administration General Counsel's Office Medical Quality Assistance Allied Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Michele L. Schrembs DeGrolier, pro se 1501 Carlos Avenue Clearwater, Florida 33755
The Issue Whether Respondent violated Subsections 464.018(1)(c), (h), and (i), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Nursing (Department), is the agency charged with the regulation of the practice of nursing pursuant to Chapters 20, 456 and 464, Florida Statutes. Respondent, Marion Morris Morrow (Morrow), is a licensed practical nurse in the State of Florida, having been issued license number PN 0801791. Morrow met George Davison (Davison) when his wife was a patient at Green Briar Nursing Home, where Morrow was the charge nurse. In 1997, Davison was involved in an automobile accident, resulting in the loss of his driver's license. After Davison was no longer able to drive, Morrow took Davison to the grocery store to buy groceries. She also took him to the bank to cash checks. Morrow came to Davison's house on a regular basis to see him. If he was not feeling well, she checked on him, and if he needed anything she went and got it for him. Davison sold his automobile to Morrow for $2,500. She was to pay a little on the car as she had the money, but the total $2,500 has not been paid. At least two times after he sold the car to Morrow, he gave her money to pay the insurance on the car. He gave Morrow a few hundred dollars to pay her eldest son's college tuition. Davison gave Morrow money from time to time as she needed it. Morrow spent some of the money to support her cocaine habit. Davison was unaware that Morrow used any of the money to buy crack cocaine. On March 28, 1999, the Coral Gables Police Department received a 911 call from Davison, who was having delusions about people being in his house. Responding to the call, the police went to Davison's home. Morrow was at the home when the police arrived. On March 28, 1999, the Department of Children and Family Services' Adult Protective Services Unit received a complaint from the Coral Gables Police Department, alleging that possibly Davison, who was born in 1913, was being abused by his caregiver. Protective Services Investigator John Steinhilber was assigned the case and went to Davison's residence on March 29, 1999, to investigate. When Mr. Steinhilber arrived at Davison's home, he spoke with Morrow but was not admitted into the residence. On March 29, 1999, Davison was admitted to the South Miami Hospital. Morrow took Davison to the hospital at his request. Mr. Steinhilber contacted the Coral Gables Police Department for assistance in gaining admittance to Davison's home. On March 30, 1999, Mr. Steinhilber returned to Davison's residence with two police detectives, Kathleen Williams and Terry Drinkut. Morrow answered the door and let them in the house. Morrow had been on the telephone with Davison when the police arrived. She gave the telephone to Ms. Williams to talk to Davison, who gave the police permission to look around his home. Ms. Williams asked for Morrow's identification. Morrow proceeded to the back bedroom with the detectives following her. Morrow ran to the bed and grabbed something off of the bed. Thinking that Morrow may have a weapon, the detectives subdued her and found a crack pipe in one of her hands. There was debris on the bed, which appeared to be crack cocaine. Morrow was advised of her rights and taken to the police station. While the detectives were at Davison's residence, they inspected the interior of the house. There was rotting food on the kitchen counter, in the oven, and in the refrigerator, which was not working. One of the bathrooms had worms living in the toilet. There was feces in a lavatory, on Davison's bedroom floor, and in Davison's sheets. Dirty clothes with feces were piled in a corner of the bedroom. Empty medication bottles, dating back to 1998, were in the kitchen. There were piles of garbage throughout the house. Morrow was advised of her constitutional rights again at the police station. She told the police officers that she had begun taking care of Davison after he had an automobile accident in 1997, checking on him almost daily and occasionally staying overnight. She admitted that she was addicted to crack cocaine, and that since she had been a caregiver to Davison that she had received between $100,000 and $180,000 from Davison. She stated that she would go to the bank with Davison, who would negotiate checks made out to cash and turn the money over to Morrow. Additionally, she confessed that the majority of the money had been spent by Morrow for crack cocaine. From November 21, 1998, to February 18, 1999, Davison had written 62 checks for cash, totaling $16,114. At times more than one check would be cashed on the same day. Two of the checks for cash had been endorsed by Morrow. During the same time period, two checks were made payable to Morrow for a total of $323. Davison does not know what happened to the cash. He does not believe that he gave the cash to Morrow, but he has no explanation for where the cash went or what he bought with the money. Davison admits giving some money to Morrow over the course of their friendship, but he denies that he gave her between $100,000 and $180,000. On April 23, 1999, a two-count information was filed, alleging that Morrow abused an elderly person by neglecting to adequately provide care, supervision, and services for Davison and/or allowing the living conditions to deteriorate to a point which could reasonably result in physical or psychological injury and alleging that Morrow, while standing in a position of trust and confidence, knowingly obtained funds by deception or intimidation from Davison in an amount more than $20,000 but less than $100,000. On November 5, 1999, Morrow pled guilty to Count I of the information, alleging abuse of an elderly person by neglecting to provide adequate care. Count II of the information was nolle prossed. Adjudication was withheld, and Morrow was placed on probation for 12 months. Morrow attended a substance abuse program as a condition of her probation and was clean from the use of drugs or alcohol for fifteen months at the time of the final hearing. Morrow has not been employed since November 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Marion Morris Morrow did not violate Subsections 464.018(1)(h) and (i), Florida Statutes, finding that Marion Morris Morrow did violate Subsection 464.018(1)(c), Florida Statutes, imposing a fine of $500, and suspending her license for one year, to be followed by an appearance before the Board of Nursing to determine if she is safe to return to practice. If the Board of Nursing so determines, it may reinstate Marion Morris Morrow's license upon such conditions as it deems appropriate to protect the public health, safety, and welfare. DONE AND ENTERED this 5th day of October, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2000. COPIES FURNISHED: Diane K. Kiesling, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Room 3231A Tallahassee, Florida 32308 Marion Morris Morrow 27920 Southwest 130th Avenue Homestead, Florida 33032 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714
The Issue The issue is whether Respondent's license to practice nursing should be revoked, suspended, or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Rita Flint (Flint) was a licensed practical nurse in the State of Florida, holding license number PN0655201. Flint's last known address is 6494 South West 8th Place, North Lauderdale, Florida 33068. At all times material to this proceeding Flint was employed by North Broward Medical Center (NBMC) located in Pompano Beach, Florida, as a practical nurse. On August 3, 1990, Flint was assigned to care for patients J. C. and J. K. including administering their medications and charting same on their Medication Administration Record (MAR). On August 3, 1990, J. C.'s physician prescribed one (1) nitroglycerine patch each day. Flint failed to administer the patch on this date. On August 3, 1990, J. C.'s physician prescribed 100 mg. of Norpace every six (6) hours. Flint failed to administer the 2:00 p.m. dosage of Norpace to J. C. On August 3, 1990, J. C.'s physician prescribed 120 mg. of Inderal each day. Flint failed to administer the 9:00 a.m. dosage of Inderal until 1:30 p.m. without noting any explanation on J. C.'s MAR. On August 3, 1990, Flint failed to document the administration of J. K's own medications on the MAR. On August 3, 1990, Flint failed to sign the MARs for J. C. and J. K. as required by hospital policy. On August 15, 1990, Flint left an intravenous bag with an exposed needle hanging at the bedside of a patient. On August 29, 1990, Flint was assigned to care for patient R. R. including administering his medications. Flint failed to administer the following medications leaving all of them at R. R.'s bedside: (a) Timolo (9:00 a.m. and 2:00 p.m. doses); (b) Mixide (9:00 a.m. dose); (c) Zantac (9:00 a.m. and 4:00 p.m. doses); (d) Lasix (9:00 a.m. dose); and, (e) Entozyme (8:00 a.m. and 12:00 noon doses). On August 30, 1990, NBMC terminated Flint's employment as a result of the aforementioned conduct. There is no evidence that any patient suffered any actual harm as a result of Flint's errors. In September of 1990, NBMC referred Flint to the Intervention Project for Nurses. At all times relevant to this proceeding, Flint's job performance was adversely affected by long work schedules necessitated by severe financial problems. During the week of August 3, 1990, Flint worked a ninety-two-hour week. The acute financial stress was due to domestic problems including the breakup of her twenty-two-year-old marriage. Flint had no problems involving substance abuse. Flint attended individual therapy sessions with a clinical psychologist, Priscilla Marotta, Ph.D., and participated in group therapy designed primarily for persons with substance abuse problems. Flint attended weekly therapy sessions for approximately one month after which she could no longer afford treatment. Even though Flint was financially unable to continue treatment with Dr. Marotta or any other counseling program recommended by the Intervention Program for Nurses, she diligently undertook a self-help program to educate herself on stress management techniques, to develop self-reliance, and to improve self-esteem. Flint's effort to participate in therapy, to the extent financially possible, and to rehabilitate herself shows a strong commitment to her profession. Flint has been licensed to practice nursing since May 31, 1982. There is no evidence of any disciplinary action against her license prior to or after the incidents herein described. Flint is currently employed as a nurse in a hospice. Her recent performance appraisal reports indicate that, on an average, she fully meets all job requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding Respondent guilty of violating Section 464.018(h), Florida Statutes (1989), as defined in Rule 210-10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and not guilty of violating Section 464.018(1)(j), Florida Statutes. It is further recommended that the Board's final order: (1) place the Respondent on probation for one year subject to such requirements as the Board may require; and (2) require the Respondent to pay an administrative fine in the amount of two hundred fifty dollars ($250). DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November 1994. SUZANNE F. HOOD, Hearing Officer 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 November 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2715 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Incorporated into Findings of Fact 1. Incorporated into Findings of Fact 2 and 11. Incorporated into Findings of Fact 4. Incorporated into Findings of Fact 5. Incorporated into Findings of Fact 6. Incorporated into Findings of Fact 7. Incorporated into Findings of Fact 8. Incorporated into Findings of Fact 9. Incorporated into Findings of Fact 10. The first sentence is incorporated into Findings of Fact 13. The remaining portion of this proposed fact is not supported by competent substantial evidence. Furthermore, Respondent's Exhibit 3, as it relates to a diagnosis of a mental condition, is hearsay which does not supplement or explain any other psychological or medical evidence. Thus, any reference in Exhibit R3 to a generalized anxiety disorder is insufficient to support Petitioner's proposed finding. Unsupported by competent substantial evidence. Unsupported by competent substantial evidence. See number 10 above. FOR THE RESPONDENT: 1. Respondent did file proposed findings of fact or conclusions of law. COPIES FURNISHED: Laura Gaffney, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rita Flint 3313 South East Second Street Pompano, Florida 33063 Judie Ritter Executive Director Board of Nursing AHCA 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Harold D. Lewis General Counsel The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue in this case is whether Petitioner's application for multistate registered nurse licensure by endorsement should be denied for the reasons given by Respondent in its Notice of Intent to Deny, or whether Petitioner met his ultimate burden of persuasion that his application should be approved.
Findings Of Fact Stipulated Facts Mr. Fernandez pled nolo contendere to and was convicted of assault with a deadly weapon on June 26, 2001, in Dade County, Florida. Mr. Fernandez's nursing license was revoked by Final Order issued on January 16, 2014, for violating sections 464.018(1)(n) and 464.018(1)(h), Florida Statutes, and Florida Administrative Code Rules 64B9-8.005(2)(c) and 64B9-8.005(1)(e). Additional Facts Based upon the credibility of the witnesses and evidence presented at the final hearing, matters deemed admitted, and matters officially recognized, the following additional facts are found: Petitioner was licensed in Florida as an RN by the Board on April 11, 2001. The matters giving rise to the stipulated facts above occurred at the beginning and near the end of the span of time during which Petitioner held an RN license in Florida. No evidence was presented regarding Petitioner's professional employment or activities during that time span, with the exception of very limited facts surrounding the matters addressed in the two stipulated facts above. Permanent Revocation of Petitioner's RN License by the Board In November 2009, an Administrative Complaint was issued against Mr. Fernandez, charging him in three counts with violations of section 464.018(1)(n) (failing to meet minimal standards of acceptable and prevailing nursing practice), rule 64B9-8.005(2)(c) (misappropriating drugs), section 464.018(1)(h) (unprofessional conduct), and rule 64B9-8.005(1)(e) (committing acts of negligence, by omission or commission). Petitioner, represented by counsel, elected an informal proceeding not involving disputed issues of material fact, choosing not to contest the allegations and opting to address mitigating/aggravating circumstances in a hearing before the Board. On January 5, 2011, the Board issued a Final Order concluding that Mr. Fernandez committed the violations charged, and permanently revoking his RN license as the penalty. Mr. Fernandez retained a different lawyer (who was his counsel of record in this case) to appeal the 2011 Final Order. The appeal was resolved by opinion in Fernandez v. Department of Health, Board of Nursing, 82 So. 3d 1202 (Fla. 4th DCA 2012) (Fernandez I). As described in the opinion, the only issues raised on appeal were the penalty assessments for Counts I and II. Accordingly, the court affirmed Count III without discussion. The court reversed the penalty assessments for Counts I and II. As to Count I, the court held that the 2011 Final Order was deficient for failing to explain the reason(s) for increasing the penalty above the penalty range in the Board's penalty guidelines rule. As to Count II, the court held that no penalty could be assessed for the violation found, because the Board had failed to adopt penalty guidelines for that violation. The court therefore remanded the case to allow the Board to reconsider the penalty assessed for just Counts I and III. The court acknowledged the Board's statutory authority codified in section 456.072(2)(b) to impose the penalty of permanent revocation, which was not challenged by Mr. Fernandez. However, the court held that if the Board chose to impose that penalty, it had to explain its reason(s), since permanent revocation exceeded the penalty guidelines. In Fernandez I, Mr. Fernandez did not challenge the fairness of the proceedings based on his election of an informal hearing. As the court pointed out: "Fernandez elected an informal hearing. By doing so, Fernandez admitted the factual allegations, seeking only to mitigate the penalties that might be imposed." Fernandez I, 82 So. 3d at 1203. On August 29, 2012, the Board issued a second Final Order, again permanently revoking Petitioner's RN license. To address the court's directives in Fernandez I, the 2012 Final Order set forth five reasons justifying an upward deviation from the penalty guidelines rule to impose the penalty of permanent revocation. Mr. Fernandez appealed the 2012 Final Order, arguing that none of the five reasons given for imposing the penalty of permanent revocation was supported by competent substantial evidence. As to one of the five reasons, the court agreed. But as to the other four reasons for increasing the penalty, the court rejected Mr. Fernandez's challenge to the adequacy of supporting evidence. Once again, the court recognized that the Board had the authority to increase the penalty based on reasons supported by the record evidence. However, the court could not determine whether, without considering the one reason found insufficiently supported, the Board would have imposed the same penalty. Therefore, the court remanded the case to the Board to reconsider the penalty based on the four reasons upheld by the court as adequately supported with record evidence. Fernandez v. Dep't of Health, Bd. of Nursing, 120 So. 3d 117 (Fla. 4th DCA 2013) (Fernandez II). The 2014 Final Order was the Board's third and last Final Order. The 2014 Final Order set forth the four reasons to increase the penalty that were upheld in Fernandez II, and again imposed the penalty of permanent revocation of Petitioner's RN license. Mr. Fernandez did not appeal the 2014 Final Order. The permanent revocation of his RN license is therefore the outcome of the disciplinary action, and the findings of fact, conclusions of law, and penalty are binding on Petitioner, as well as the Board. The 2014 Final Order adopted the allegations of fact in the Administrative Complaint, which were not disputed by Mr. Fernandez. The admitted facts relevant to Counts I and III were as follows: At all times material to this Complaint, Respondent was employed at Sunrise Home Health Care (SHHC), located in Miami, Florida. Respondent was assigned to provide home health services to various clients of the agency. On or about February 16, 2009, Patient MS, a 68 year old female, was a patient of SHHC. Patient MS, a female, had a prescription for Heparin Lock Flush: Flush catheter with 3-5mL of Heparin after last saline flush. Heparin is used to prevent blood clots from forming in people who have certain medical conditions or who are undergoing certain medical procedures that increase the chance that clots will form. Heparin is also used to stop the growth of clots that have already formed in the blood vessels, but it cannot be used to decrease the size of the clots that have already formed. Heparin is also used in small amounts to prevent blood clots from forming in catheters (small plastic tubes through which medication can be administered or blood drawn) that are left in veins over a period of time. Heparin is in a class of medications called anticoagulants ('blood thinners'). It works by decreasing the clotting ability of the blood. Respondent is not an employee of Miramar Memorial Hospital and does not have rights to practice medicine at Miramar Memorial Hospital. On or about March 18, 2009, Patient RM, a 44 year old female was a patient at Miramar Memorial Hospital, located in Miramar, Florida. Patient RM was known to the Respondent. On or about March 18, 2009, patient RM gave birth to twin female babies. On or about March 19, 2009, Respondent was at Miramar Memorial Hospital visiting Patient RM. On or about March 19, 2009, Respondent administered one or more syringes of Heparin (5cc each), belonging to Patient MS, to Patient RM via catheter. The syringes were found in the garbage can of Patient RM by her assigned nurse MB, an employee of Miramar Memorial Hospital. On or about March 19, 2009, Patient RM did not have a prescription or physician's order for the use of Heparin. On or about March 20, 2009, Respondent was interviewed by the Miramar police and admitted administering one syringe of Heparin to Patient RM, without a physician's order. After adopting as its findings of fact the allegations in the Administrative Complaint, the Board made additional findings of aggravating facts in the 2014 Final Order: The Board finds aggravating facts as follows: Respondent practiced nursing in a facility where he was not employed. Respondent administered medication that belonged to another patient to RM, who was not his patient. The medication that was administered to RM was brought into the hospital from Respondent's car. Respondent administered medication to RM that was not ordered by RM's treating physician. Respondent failed to advise hospital staff that he administered medication to RM. Respondent administered heparin to RM to flush a foley catheter, which is not proper protocol for flushing a foley catheter. Respondent has practiced nursing for 13 years. The 2014 Final Order then set forth the Board's Conclusions of Law that Mr. Fernandez violated section 464.018(1)(n) (as charged in Count I, for failing to meet minimal standards of acceptable and prevailing nursing practice by misappropriating drugs) and section 464.018(1)(h) (as charged in Count III, for engaging in unprofessional conduct through negligence, by administering the medication Heparin to RM, who was not his assigned patient, without physician's order and without any knowledge of the patient's current medical treatment). The 2014 Final Order next addressed the penalty for those violations, as follows: The Board is empowered by Sections 464.018(2) and 456.072(2), Florida Statutes, to impose a penalty against the licensee. The Board finds that a penalty harsher than the penalties stated in Rule 64B9-8.006 is warranted for the following reasons: The danger to the public represented by Respondent's actions. The length of time Respondent has practiced nursing. The deterrent effect of the penalty being imposed. The failure of Respondent to correct the violation. Based on those four reasons, the Board permanently revoked Mr. Fernandez's RN license, effective upon the filing of the 2014 Final Order with the Department of Health's Agency Clerk (which was on January 16, 2014). Despite permanent revocation of his RN license, Mr. Fernandez filed an application with the Board in 2020 for multistate RN licensure by endorsement. The Board voted to deny the application at a noticed meeting. Mr. Fernandez did not appear at that meeting. The Board exercised its authority under sections 456.072(2) and 464.018(2) to refuse to certify the applicant for licensure because of the 2014 permanent revocation of Mr. Fernandez's RN license, and also because Mr. Fernandez's application disclosed that he had pled nolo contendere and was convicted for felony aggravated assault with a deadly weapon in 2001.2 The Board found that the crime was related to the practice of nursing or the ability to practice nursing. Mr. Fernandez requested a disputed-fact administrative hearing to contest the proposed denial of his application. He raised as the only disputed fact whether the 2001 conviction was directly related to the practice of nursing. He asserted that it was not, and contended that the applicable statutes and rules require that a criminal conviction must be directly related to one's professional practice. Based on his argument directed to one of the two reasons cited in the Notice of Intent to Deny, Mr. Fernandez contended that the Board should approve his application for RN licensure. Mr. Fernandez's hearing request did not take issue with, or address, the other basis for the Board's refusal to certify the applicant for approval— that the Board had permanently revoked Mr. Fernandez's RN license by the 2014 Final Order. At the hearing, although Petitioner sought to dispute the 2 "Road rage" was the term used by Petitioner's attorney in his opening statement to describe the incident underlying the 2001 nolo plea and conviction for felony aggravated assault with a deadly weapon. That description is apt, based on the evidence. facts on which the 2014 Final Order was predicated, he offered no argument as to why he should be permitted to contest those facts now, or why he should be permitted to apply for an RN license in Florida at all, following the permanent revocation of his RN license. Evidence Related to Whether Petitioner Proved Entitlement to Licensure Assuming, arguendo, that the permanent revocation of Petitioner's RN license does not act to bar him from applying anew for an RN license, the next question is what evidence supports Mr. Fernandez's qualifications to meet the requirements for the license for which he has applied. As the license applicant, at the final hearing Mr. Fernandez presented his case first. Mr. Fernandez did not offer his 2020 license application into evidence. The only document identified as a potential exhibit for Petitioner in the parties' Pre-hearing Statement was Mr. Fernandez's resume, but his resume was not offered into evidence. Although Petitioner did not offer his 2020 application in evidence, Respondent did so, presenting as a composite exhibit what was described as Petitioner's 2020 application file.3 Neither Petitioner nor Respondent addressed, through evidence or argument at the hearing or by post-hearing submittal, whether the evidence supports a finding that Petitioner made a preliminary showing of compliance with the requirements for multistate RN licensure by endorsement. The application form completed by Petitioner and signed on September 10, 2020, reflects that Petitioner is seeking multistate RN licensure by endorsement based on having successfully applied for and obtained RN licensure by examination in Florida in 2001. 3 The portions of the application that are Mr. Fernandez's own statements can be considered admissions when offered against him, but statements recounting what others said or statements submitted by others are hearsay that cannot be the sole basis for findings of fact. See § 90.803(18)(a), Fla. Stat. (statements of a party offered against the party are admissible as exceptions to the hearsay prohibition). Petitioner's application reflects that he has held one, and only one, nursing license in any state, and that is the Florida RN license number 9177203, issued on April 11, 2001, which was permanently revoked by the 2014 Final Order. At the time Mr. Fernandez submitted his 2020 application, he did not hold an active license to practice nursing in another state. No evidence was offered at the hearing to prove that Mr. Fernandez has ever held a license to practice nursing in another state. No evidence was offered to prove that Mr. Fernandez has actively practiced nursing in another state for two of the last three years, as would stand to reason in the absence of evidence that he holds a license to practice nursing in another state. Mr. Fernandez designated the state of Florida as his "home state" for purposes of seeking a multistate license, and acknowledged that he does not hold a multistate license in any other state. In separate application sections asking about the applicant's criminal history and disciplinary history, Mr. Fernandez disclosed his felony conviction for the road rage incident and the Board's revocation of his Florida RN license. These disclosures triggered requirements in each section that the applicant provide: (1) a self-explanation describing the circumstances; (2) attach documentation (court records for the criminal history; complaint and Final Order for the disciplinary history); and (3) three "current (written within the last year) professional Letters of Recommendation." (underline and bold in original). Petitioner's Response to Permanent Revocation Per 2014 Final Order In his 2020 application, Mr. Fernandez took the opportunity in his self-explanation of the 2014 Final Order to dispute the findings and conclusions, and offer his own version of what happened. Mr. Fernandez began his self-explanation by characterizing his actions as a "BIG mistake." Mr. Fernandez's self-explanation to the Board went on to describe his visit to the hospital to see RM, FV's wife, who had given birth to twins. Mr. Fernandez described FV as an old friend who was also the owner of the home health agency where he worked. He said his friend/boss, FV, had called three times urging him to come visit to see the babies. Mr. Fernandez described being in RM's hospital room while RM's assigned nurse was tending to the patient and inserting a foley catheter. He described how thereafter, he and his friend/boss became concerned about the patient's status, called the assigned nurse "more than 4 times" and suggested that she take action that they thought was needed, but the nurse disagreed. According to Mr. Fernandez, he and FV "were there asking and begging her [the assigned nurse] for proper nurse implementations, we talk [to] her many times … but she never implements" what they were urging. The nurse contacted the patient's physician, who gave orders for medication, which was administered by the patient's assigned nurse. Mr. Fernandez said that after the nurse had implemented the doctor's orders, both RM (the patient) and FV (his friend/boss) asked Mr. Fernandez to help the patient, "knowing that I have on my car saline flushes Syringes [sic]." He said he asked the nurse one more time to take the step he thought was needed, but she did not. He and FV then went to the parking garage to Mr. Fernandez's car. Mr. Fernandez claimed he intended to get some saline syringes that he uses to flush his home health patients' catheters. Mr. Fernandez claimed that "fatally within those saline syringes flush Bag there were 2 heparin flush syringes," and he assigned blame to the home health office for putting the heparin syringes in the saline syringe bag by mistake. He admitted he took the bag with him to RM's room and performed the foley catheter flush. He also explained that "due to the rush of the situation and the effect of [FV] requesting my help (my home health boss) I had a poor judgment and flushed the [RM] Foley Cath, no realizing at that moment she was not my patient." (errors in original; emphasis added). Mr. Fernandez added in his self-explanation that RM's assigned nurse found two heparin flush syringes in the patient's garbage can (confirming that Mr. Fernandez did not tell the assigned nurse or anyone else that he had administered to RM what he claimed he thought were saline flushes, but instead were heparin flushes), and the assigned nurse called the police. Mr. Fernandez claimed he volunteered to the police that he was the one who administered the heparin flushes only because the police thought FV had tried to kill his wife after finding the two heparin flush syringes in her garbage can. He expressed regret for telling the truth: "And I blame my self- telling police the true." Mr. Fernandez proceeded in his self-explanation to accuse both RM and FV of lying to the police by saying they never asked Mr. Fernandez for help. As Mr. Fernandez put it, when RM was interviewed by the police, "she denies THE TRUTH, she lied, she say NO to an important question done by the police, at that moment she denies requesting my help, the police asks her 3 times and 3 times she denial asking me for help that day." (errors in original). Mr. Fernandez then blamed his friend/boss, claiming RM later told him that "she lied to policeman following advice from her husband [FV], (who for fear or afraid of being discovered stealing from Medicaid and Medicare on his agency decided to lie to the police, [FV] the person who was my friend and the one who call me to the hospital that day willing to know my opinion about [RM's] poor condition, the same who asked me for help, the owner of community care home health nursing agency in which I usually worked under his orders. He instructed [RM] to lied to police)." (errors in original). Mr. Fernandez's self-explanation ended with one final accusation— that the attorney he hired to represent him in the disciplinary case also lied: "I hired and lawyer Office for a formal hearing in from of board of nursing but they also lied to me and sent papers requesting an informal hearing … . In a formal hearing true will clarified the incident and the final result again my RN license it could have been different but the malpractice and bad representation from my lawyer requesting an informal hearing in from of the board of nursing [d]on't allow me to dispute the charges on the administrative complaint." (errors in original). As noted above, though, Mr. Fernandez retained a different lawyer— his counsel of record in this case— to appeal the first two Final Orders, and no issue was raised in Fernandez I or Fernandez II with regard to the propriety of the election or the resulting informal hearing. At the hearing, Mr. Fernandez addressed the permanent revocation of his RN license by attempting to dispute the facts that he was deemed to have admitted (as stated by the court in Fernandez I). He offered testimony that was somewhat similar to his self-explanation, although there were several notable inconsistencies. Mr. Fernandez went into detail in describing the patient's condition, in an attempt to justify the appropriateness of what he did, although he offered no medical records to prove what he described. He offered largely hearsay testimony regarding what he was told by RM and FV, but offered no non-hearsay evidence (such as the testimony of FV, whom Mr. Fernandez continued to describe as his best friend). He offered some of the same accusations directed to RM's assigned nurse, although again, he offered no medical records to support his description of RM's condition, nor did he offer non-hearsay testimony to prove alleged conversations with the nurse. He repeated his claim that RM and FV begged him for help, omitting any reference to the different story they apparently told the police (which he characterized in his self-explanation as lies). Again, no corroborating non- hearsay testimony was offered, such as testimony from FV, his "best friend." In the self-explanation, Mr. Fernandez only said that he and FV asked the assigned nurse multiple times to implement the procedure they thought was needed, and that in the rush and pressure of being asked for help by his friend and boss, he did not even realize that RM was not his patient. And rather than attempt to justify giving heparin to RM that was prescribed for one of his home health agency patients, without knowing RM's medical background and without doctor's orders, Mr. Fernandez claimed that the home health agency put the heparin in the wrong bag by mistake. In marked contrast, at the final hearing Mr. Fernandez expanded his hearsay testimony to claim: that he asked other hospital staff members for help, to no avail; that the patient's condition required administration of heparin; and that he only took matters into his own hands as a last resort to address what he believed to be an emergency situation.4 His embellishments lacked credibility, were inconsistent with his self-explanation (which also suffered from credibility questions5), and relied almost exclusively on hearsay that cannot be considered. What Mr. Fernandez did show, by his testimony and self-explanation, was that he accepts little to no responsibility, and instead, continues to blame and accuse everyone else for his actions. Even if he had offered credible, non-hearsay evidence, Mr. Fernandez is bound by facts found in the 2014 Final Order permanently revoking his license. His testimony cannot be accepted, because it was contrary to facts he is not entitled to relitigate. These include the finding that he "administered heparin to RM to flush a foley catheter, which is not proper protocol for flushing a foley catheter." 2014 Final Order at 2, aggravating fact 6. Mr. Fernandez is also bound by the reasons found by the Board to increase his penalty, including the first reason: "The danger to the public represented by [Mr. Fernandez's] actions." 2014 Final Order at 3. He had his opportunity to challenge the sufficiency of the evidence supporting that finding, and the court rejected that challenge in Fernandez II. Mr. Fernandez offered no evidence to prove that he should no longer be considered a danger to the public. No evidence was offered to prove what Mr. Fernandez has been doing since the 2014 Final Order was issued. He 4 Mr. Fernandez claimed he was told criminal charges filed against him would be dropped because he was acting as a Good Samaritan. This blatant hearsay cannot be considered. 5 Mr. Fernandez's claims that he did not intend to administer heparin and that he did not realize RM was not his patient are, quite simply, unbelievable. offered no proof of rehabilitative steps taken, professional activities, educational endeavors—nothing. The record is devoid of evidence to overcome the negative implications from the 2014 Final Order and the findings therein. Petitioner's Response to Felony Conviction for Road Rage Incident Nineteen days after Petitioner's Florida RN license was issued, on April 30, 2001, Petitioner committed an episode of "road rage." He was charged with aggravated assault with a deadly weapon, a third-degree felony. He pled nolo contendere and was convicted of this charge. For his crime, in addition to a probationary term, Petitioner was required to take an anger management course. In his 2020 application, Mr. Fernandez included a short self- explanation to the Board, along with the court records, as required. In his self-explanation, he said that he thought another vehicle cut him off, and instead of getting an apology from the driver, the driver gestured with her middle finger. (Petitioner described the driver of the other vehicle as a male, but the court records he provided clearly identified the other driver as a female.) Petitioner admitted that he reacted to the gesture "with anger." He accelerated, made a U-turn, and forced the driver to pull off the road so he could confront her. (Petitioner did not describe what he did as forcing the other driver off the road; instead, he said that he accelerated and did the U- turn so that, once he was alongside the other driver, they could have a "discussion" through her car window. Yet, the only way it would have been possible to have a "discussion" with the driver through the window is if Petitioner was able to get the other vehicle to pull off the road so he could also stop his vehicle, approach the other vehicle, and have the so-called discussion with the other driver through the window.) Petitioner admitted that his acceleration and U-turn were observed by a police officer. The eyewitness police officer completed a police report in affidavit form, which provided additional details corroborating and supplementing Petitioner's 2020 self-explanation. According to the police report, the officer observed an initial close encounter between Mr. Fernandez's vehicle and the "victim's" vehicle. After the initial close encounter, in which no contact was made, Mr. Fernandez "began to spin his wheels and make a 180[-degree] aggressive turn to go after victim. While doing so and on his cellular phone, he jumped the concrete median and began to chase the victim." The police officer followed the two vehicles. The officer observed Mr. Fernandez pull his 2000 black Ford Expedition alongside of the victim and then swerve to cut off the victim's vehicle, forcing the victim to veer her vehicle off the road to avoid a collision. When Mr. Fernandez had successfully maneuvered the victim to stop her vehicle, he also stopped, exited his vehicle, and confronted the victim in her vehicle. The victim put her window down, whereupon Mr. Fernandez began to scream obscenities at the victim in both English and Spanish. At that point, the officer intervened. The officer directed the victim to sit on the curb and he interviewed her. The officer observed the victim to be visibly shaken. Mr. Fernandez was placed in custody and transported to the police station. The eyewitness officer summarized his observations as follows: "[Mr. Fernandez] displayed a wanton disregard for the safety of other motorists (running red light, jumping median, cutting victim['s] vehicle off)." He concluded the police report with the following addition: "Det[ective] E. Garcia conducted interview of [Mr. Fernandez]. [Mr. Fernandez] admitted to purposely swerving his vehicle into the victim's path to stop the vehicle." In Petitioner's self-explanation to the Board, he characterized his actions as follows: "I made a mistake and accelerated my car toward the [other vehicle] looking for an apology from him [sic]." "I made a mistake when I decide to chase the [other vehicle] and started a discussion with that person. I should no confront him [sic], I should have to continue my way[.]" At the hearing, Petitioner, through counsel, offered two arguments for why the Board should not consider the felony conviction for the road rage incident as a reason to deny Petitioner's application. First, through argument only, counsel asserted that the nolo plea and conviction for felony aggravated assault with a deadly weapon did not involve a crime that is related to the practice of nursing or the ability to practice nursing. Second, Petitioner's counsel raised for the first time6 the argument that the Board should be estopped from asserting the felony conviction for the road rage incident as a reason to deny Petitioner's 2020 application. Counsel argued that Petitioner would have had to disclose the crime on every biannual license renewal application, in 2003, 2005, 2007, and 2009, until his license was revoked, and the Board should be estopped from raising this crime now because the Board purportedly knew about the crime and did not attempt to revoke or otherwise discipline Petitioner. Petitioner did not offer any testimony regarding whether felony aggravated assault with a deadly weapon is, or should under the circumstances be considered, a crime related to the practice of nursing or the ability to practice nursing. Respondent presented testimony of Lisa Johnson, accepted as an expert in the practice of professional nursing. Ms. Johnson offered the opinion that Petitioner's road rage crime was related to the practice of or the ability to practice nursing. Her opinion was credible, was not refuted, and is credited. Ms. Johnson based her opinion on two separate rationales. First, she explained that, based on her review of Petitioner's application, including the police report, Petitioner's conduct was "very disturbing." She opined that Petitioner's extreme reaction out of anger upon being upset by another driver, endangering other motorists, was contrary to the character and qualities required for the practice of professional nursing. She explained the importance of nurses always keeping a level head. Nurses must always 6 Consistent with his hearing request, Petitioner stated his position in the joint Prehearing Statement in a single point, as follows: "Mr. Fernandez [sic] conviction for aggravated assault was not related to the practice of nursing." critically think, and make decisions that are educated and informed, rather than driven by emotion. She added that one of the most surprising things was that the felony occurred just 19 days after Petitioner's RN license was issued, when he had just taken the oath and the expectations of the nursing profession were still fresh in his mind. Ms. Johnson also pointed to the background screening laws applicable to a Level 2 screening, which Petitioner would have to undergo in order to work as an RN in health care facilities and virtually all other health care settings. Petitioner's nolo plea and conviction for felony aggravated assault with a deadly weapon is a disqualifying offense, meaning that Petitioner would be disqualified from working as a nurse in a hospital, nursing home, assisted living facility, home health agency, health care clinic, or other health care settings (such as nurse registries) that are required to conduct background screening of persons who provide personal care or services directly to patients/residents/clients. Petitioner would have the option of applying to the Board for an exemption from disqualification, and in such an application, he would have to provide clear and convincing evidence that he is rehabilitated. No evidence was offered by Petitioner to indicate that he ever sought and obtained an exemption from disqualification from the Board because of his disqualifying offense, as should have been necessary for him to be providing patient care to home health agency patients. No evidence was offered by Petitioner to support the claim that the Board was aware of the crime, as the predicate for counsel's new estoppel argument. The only testimony from Petitioner about this subject was that he renewed his nursing license every two years, and at the time he renewed his application in 2003, "the department was aware" of his crime. (Tr. 17, emphasis added). He referred vaguely to having "sent in all the paperwork" and every two years they allowed him to continue working as a nurse. Petitioner did not testify that the Board had knowledge of the road rage incident or resulting nolo plea/conviction at any point before the application he filed in 2020 at issue in this case. No evidence was offered by Petitioner of: (1) his actual RN license renewal applications; (2) whether the RN license renewal applications were submitted to the Department of Health (as he seemed to suggest) and not to the Board7; or (3) the extent to which he did or did not disclose the felony conviction, submit a detailed self- explanation, or submit the court records, including the police report, as he did in the 2020 application at issue here. Petitioner's testimony falls short of proof as to what, if any, disclosures he made to the Board prior to 2020. There is no evidentiary basis to support a finding that the Board had prior knowledge of the road rage incident or felony conviction resulting from that incident. Requirement for Recent Professional Recommendations In response to disclosures of disciplinary history and criminal history in his 2020 application, the Board required Petitioner to submit three recent professional letters of recommendation. "Recent" was defined as "written within the last year." In the de novo administrative hearing, it was incumbent on Petitioner to offer non-hearsay evidence serving the same purpose as the Board's requirement to submit recent professional letters of recommendation: to overcome the implication from the disciplinary history and criminal history that Petitioner is unfit for licensure. Completely lacking at the hearing was any evidence regarding why Mr. Fernandez should now be trusted to not react with anger or rush into action based on emotions, as he did at the beginning and the end of his RN licensure tenure in Florida. In 2014, the Board determined that Petitioner's rash actions represented a danger to the public. No evidence was presented 7 Respondent confirmed in its PRO that RN license renewal applications are submitted to and processed by the Department of Health, not the Board. regarding what Mr. Fernandez has been doing since his license was revoked, to overcome the finding made in the 2014 Final Order. No character witnesses were offered. Mr. Fernandez did not present testimony, for example, of the three authors of the letters of support submitted with his application, to provide non-hearsay testimony offering recent positive professional support to potentially show rehabilitation despite his prior RN license revocation and his prior felony conviction.8 Ultimate Findings of Fact Mr. Fernandez did not meet his burden of presenting evidence to demonstrate his qualifications for multistate RN licensure by endorsement for which he has applied. 8 The three letters in Petitioner's application are hearsay and cannot be considered in this proceeding. Even if their hearsay nature were not an impediment, there are serious questions as to their reliability as "recent" letters. For example, one letter appears to be a recommendation for a job as a First Surgical Assistant (which presumably would require an active license that Mr. Fernandez has not had for at least seven years). In it, the author stated vaguely that "I have known Manuel Fernandez for the past number of years" and that Mr. Fernandez "has been working for Sunrise Home Health Care, Inc. for the past years as a RN with excellent evaluation." The letter was typed in its entirety except for the signature and the date, 6/20/2020, which was handwritten at top—a very curious form for a professional letter of recommendation. As of June 2020, it had been many years since Mr. Fernandez worked at the home health agency as an RN. Either the author was intentionally misleading by describing what sounded like Mr. Fernandez's current and recent experience as an RN, or the letter was written many years ago. Similarly, in another letter, the author described "Nurse Fernandez" as caring of his patients and dedicated to his job. The author stated she has known Nurse Fernandez for four years. The letter was typed, including the word "Dated:" typed just above the signature. However, the date itself was not typed; instead, 7/12/2020 was handwritten next to the typed "Dated:." But if the letter was written in July 2020, the author could not have vouched for "Nurse Fernandez" or described him as caring of his patients, because the author stated she only knew him for four years and Mr. Fernandez was not licensed to practice nursing or care for patients between July 2016 and July 2020. Here too, the impression from the letter's contents is that the letter was written many years ago, and the handwritten date was a fabrication. So too, the third letter was typewritten except for the date, 9/10/2020, added in handwriting. The third letter described Mr. Fernandez as a joy to work with, well-liked by his nursing colleagues, and a resource for "other" nurses to help with difficult cases. The description is in the current tense, as if Mr. Fernandez was currently working as a nurse at the time the letter was written. Once again, the handwritten date is incongruous, both as to form of a professional letter of recommendation, and as to the substance, since Mr. Fernandez could not have been practicing nursing in September 2020 or at any time for years before then. The Board proved that Petitioner had his RN license permanently revoked based on violations of Florida law, for actions that represented a danger to public. The Board proved that Petitioner pled nolo contendere and was convicted of a felony crime related to the practice of nursing or the ability to practice nursing. Mr. Fernandez did not prove that the Board had prior knowledge of his nolo plea and conviction. Mr. Fernandez offered no evidence to overcome the fitness concerns from his disciplinary history and criminal history. Instead, he continued to argue with the prior determinations, and demonstrated a lack of candor and deflection of responsibility to others in so doing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing issue a final order denying the application of Manuel Fernandez for multistate registered nurse licensure by endorsement. DONE AND ENTERED this 9th day of July, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2021. COPIES FURNISHED: Lawrence E. Besser, Esquire Samek and Besser, P.A. 1200 Brickell Avenue, Suite 1950 Miami, Florida 33131 Marlene Katherine Stern, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399 Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 Deborah McKeen, BS, CD-LPN Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399-3252
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 Having reviewed the entire record before it, the Board finds that the Findings of Fact as contained in the Hearing Officer's Recommended Order are adequately supported by competent, substantial evidence and hereby adopts those Findings of Fact as its own.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure by examination be GRANTED and that Ann Mary McKay be authorized to take the licensed practical nurse examination. DONE and ENTERED this 9th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of March, 1982.
