The Issue The issue in this case is whether Respondent, Stephen H. Rosenthal, committed the offenses alleged in an Administrative Complaint issued on or about December 22, 1999, by Petitioner, Tom Gallagher, as Commissioner of Education and, if so, what penalty should be imposed upon Respondent.
Findings Of Fact Respondent, Stephen Rosenthal, holds a valid Florida Educator's Certificate, Number 644646. Respondent's Certificate covers the areas of Elementary Education and Mathematics and is valid through June 30, 2001. At all times relevant to this matter, Respondent was employed as a fifth-grade teacher at Manatee Elementary School, an elementary school in the St. Lucie County School District. During the fall of 1997 Paul E. Griffeth, a detective with the Port St. Lucie Police Department, was informed that Respondent had been in contact through the internet with a detective of the Keene, New Hampshire Police Department, that Respondent believed that he was communicating with a minor, and that Respondent had sent the Keene detective pornographic pictures via the Internet. Based upon the information Officer Griffeth received, a search warrant was obtained. The search warrant authorized a search of an address where Respondent was believed to reside. Officer Griffeth, Todd Schrader, then a detective with the Port St. Lucie Police Department, and a Detective Calabrese attempted to execute the search warrant. When they served the search warrant on Respondent they learned that Respondent no longer lived at the address identified in the search warrant. Respondent informed Detectives Schrader and Griffeth of his new residence address and agreed to allow them to search his residence without obtaining a new warrant. Respondent inquired into the reason for the search warrant and was told that it was believed that he was suspected of having sent child pornography on the internet and of having files on his computer and computer disks in his residence that contained child pornography. Respondent initially denied these allegations. Detective Schrader asked Respondent if he knew who "Luke 14" was. Respondent admitted that he believed that "Luke 14" was a 14-year-old male. Detective Schrader told Respondent that "Luke 14" was a police detective. Respondent shook his head and said, "No, no." Respondent later admitted that he had sent pornographic pictures, including pictures of Respondent naked, to "Luke 14," believing he was a 14-year-old boy. Respondent then admitted to Detective Schrader that he had a number of pictures that he had downloaded from the internet and acknowledged that some of the pictures could be construed as child pornography. Respondent also admitted that he had numerous diskettes with pictures of minors that he had downloaded from the internet. When the detectives entered Respondent's residence, they found two pictures of two individual nude males, with their genitalia exposed, which the detectives believed to be between the ages of 12 to 16. Respondent admitted that he believed that that was the age of the boys. Respondent also admitted that he had downloaded the pictures off the internet and that he had printed them. A number of diskettes were found at Respondent's residence which contained pictures of males with their genitalia exposed. Although some of the males pictured appeared to be minors, the evidence failed to prove that they were in fact pictures of minors. 1/ On November 3, 1997, Respondent was arrested. He was charged in an Indictment filed before the United States District Court for the Southern District of Florida (hereinafter referred to as the "U.S. District Court") with eight counts of Knowingly Receiving a Visual Depiction of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer and one count of Having Possession of Three or More Visual Depictions of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer. In March 1998 Respondent entered into a Plea Agreement in the U.S. District Court, agreeing, in part, to the following: The [Respondent] agrees to plead guilty to Counts 1 and 3 of the Indictment, which charges the defendant with the knowing receipt of child pornography in interstate commerce by computer, that is, visual depictions of minors engaged in sexual conduct . . . . The [Respondent] admits that he is, in fact, guilty of this offense. On March 12, 1998, Respondent appeared before the Honorable James C. Paine, United States District Court Judge for the Southern District of Florida. Respondent was questioned extensively concerning the Plea Agreement and Respondent's understanding of the charges to which he had admitted. During this proceeding, the essential facts relating to Counts 1 and 3 were summarized and Respondent was asked whether he agreed with those facts. Respondent agreed with all the summarized facts; except the allegation that he thought that Luke 14 was a minor. 2/ Among the summarized facts which Respondent admitted to are the following: That Respondent knowingly received a visual depiction; the visual depiction was shipped or transported by interstate commerce by any means, including computer; that the visual depiction was of a minor engaged in sexually explicit conduct; and that Respondent knew that the visual depiction was of a minor engaged in sexually explicit conduct; That Respondent sent several sexually explicit pictures to Luke 14. The pictures were of the Respondent, naked; and That Respondent had photographs of two nude minors in his residence. Respondent entered a plea of guilty to Counts 1 and 3 of the Indictment, was adjudicated guilty of the two counts, and was sentenced to 70 months in prison on each Count to run concurrently. The other seven counts were dismissed. The evidence failed to prove that Respondent's plea of guilty was made as the result of any threat, coercion, or fraud. By entering a plea of guilty to Count 1 of the Indictment, Respondent admitted to the following: On or about February 5, 1997, in St. Lucie County, in the Southern District of Florida, the defendant, STEPHEN H. ROSENTHAL, did knowingly receive a visual depiction that had been transported and shipped in interstate commerce by computer . . . depicting a minor engaging in sexually explicit conduct . . . to wit: a depiction of a minor male engaging anal-genital sexual intercourse with an adult male, the production of which involved the use of a minor engaging in sexually explicit conduct. By entering a plea of guilty to Count 3 of the Indictment, Respondent admitted to the following: On or about April 15, 1997, in St. Lucie County, in the Southern District of Florida, the defendant, STEPHEN H. ROSENTHAL, did knowingly receive a visual depiction that had been transported and shipped in interstate commerce by computer . . . depicting minors engaging in sexually explicit conduct . . . to wit: a depiction of two minor males engaging oral-genital sexual intercourse, the production of which involved the use of a minor engaging in sexually explicit conduct. By pleading guilty to Counts 1 and 3 of the Indictment and admitting to Judge Paine that he had committed those offenses, Respondent admitted that he had been in possession of child pornography and that he had downloaded the child pornography from the Internet. Respondent subsequently attempted to withdraw his plea. This effort was rejected. Respondent is currently incarcerated at FCC Coleman serving his 70-month sentence. The arrest and subsequent conviction of Respondent resulted in adverse and widespread publicity in St. Lucie County. Respondent's arrest and conviction and the resulting adverse publicity were sufficiently notorious to disgrace the teaching profession and seriously reduce Respondent's effectiveness as a teacher. Respondent's employment with the St. Lucie County School Board was terminated due to the foregoing incidents. Petitioner issued an Administrative Complaint on or about December 22, 1999, in which Petitioner recommended that the Education Practices Commission impose appropriate disciplinary sanctions on Respondent's educator's certificate pursuant to Sections 231.262 and 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code, due to the following alleged facts: 3. During the 1996-1997 and 1997-1998 school year, Respondent was in possession of child pornography and down loaded the child pornography from the Internet onto his home computer. On or about November 3, 1997, Respondent was arrested and charged with 8 counts of Knowingly Receiving a Visual Depiction of Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer, and one count of Having Possession of Three or More Visual Depictions of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer. On or about June 2, 1998, Respondent pled Guilty to two of the counts of receiving the photographs. The court dismissed all other charges and adjudicated Respondent Guilty on the remaining two. Respondent was sentenced to 70 months on each count to run concurrently, to receive health/psychiatric counseling during incarceration, 3 years of supervised release, not possess a firearm and pay $3200 in fines and fees. On or about November 25, 1997, Respondent was terminated from his position with the St. Lucie County School Board. Respondent filed an unexecuted Election of Rights form and a letter in response to the Administrative Complaint. Although Respondent did not specifically request an administrative hearing, he did dispute the material facts of the Administrative Complaint. The Administrative Complaint and Respondent's letter were filed with the Division of Administrative Hearings on September 19, 2000, with a request that the matter be assigned to an administrative law judge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Stephen H. Rosenthal, violated Sections 231.28(1)(c) and (f), Florida Statutes. It is further RECOMMENDED that the final order dismiss the charge that Respondent violated Section 231.28(1)(i), Florida Statutes. It is further RECOMMENDED that Respondent's Florida Educator's Certificate, Number 644646, be permanently revoked. DONE AND ENTERED this 10th day of January, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of January, 2001.
The Issue The issue in this case is whether Petitioner, John Harris, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Petitioner, John Harris, was employed at the Florida State Hospital in Chattahoochee, Florida, from October 1977 to January 15, 1998. The Florida State Hospital is a residential facility for mentally ill adults. Mr. Harris was employed as a Unit Treatment and Rehabilitation Specialist. Mr. Harris was involved in the provision of direct care to residents of Florida State Hospital. During 1997 the Department of Children and Family Services (hereinafter referred to as the "Department") pursuant to Chapter 435, Florida Statutes, conducted background screening of employees involved in the provision of direct care to residents of Florida State Hospital. As a result of a background screening check of Mr. Harris, it was determined that Mr. Harris had pled nolo contendere to possession of cocaine, a felony pursuant to Chapter 893, Florida Statutes, in 1989. As a result of the determination that Mr. Harris had pled nolo contendere to a felony under Chapter 893, Florida Statutes, Mr. Harris was notified by the Department that he was disqualified from employment in his position with Florida State Hospital. The following are the pertinent facts concerning the 1989 nolo contendere plea: During the afternoon of September 11, 1989, Mr. Harris was traveling by automobile from Tallahassee, Florida, where he had picked up the automobile from his wife, to Quincy, Florida, where he lived; Mr. Harris was traveling at a speed of 100mph while being chased by law enforcement. He was stopped by other law enforcement personnel waiting for him just outside Quincy; The automobile that Mr. Harris was driving was searched and cocaine was discovered; Mr. Harris was charged with possession of a controlled substance in violation of Chapter 893, Florida Statutes, and reckless driving in violation of Chapter 316, Florida Statutes; Mr. Harris pled nolo contendere to the charge of possession of cocaine, a felony, and was adjudicated guilty of the offense on or about February 21, 1990; and Mr. Harris was sentenced to probation for a period of one year. Although not listed in the letter informing Mr. Harris of the results of his background screening, Mr. Harris also was charged and pled nolo contendere to the offense of possession of cocaine with intent to sell in 1981 and driving under the influence of alcohol and possession of cannabis in 1995. The following are the only pertinent facts concerning the 1981 offense offered at hearing: On or about May 24, 1982, Mr. Harris pled nolo contendere to possession with intent to sell cocaine in violation of Chapter 893, Florida Statutes, a second degree felony, as a result of an incident that took place in 1981; and Mr. Harris was adjudicated guilty and was sentenced to probation for a period of eight years. The following are the pertinent facts concerning the 1995 offenses for driving under the influence of alcohol and possession of cannabis: Mr. Harris was driving an automobile in or near Bainbridge, Georgia, when he was stopped by law enforcement; Mr. Harris was charged with driving under the influence of alcohol and possession of cannabis that was found in the glove compartment of the automobile; Mr. Harris was adjudicated guilty of both offenses; and Mr. Harris was sentenced to probation for a period of one year and a number of week-ends in jail. At the time of the formal hearing Mr. Harris was 44 years of age. Mr. Harris' immediate supervisor, Rollean Lloyd (Ms. Lloyd indicated at the hearing that her first name is spelled "Rollean") testified at the formal hearing in support of Mr. Harris' continued employment at Florida State Hospital. Ms. Lloyd also signed a letter (Ms. Lloyd's first name is spelled "Rollene" on the letter) supporting his continued employment at Florida State Hospital. Ms. Lloyd's supervisor also testified at the formal hearing and signed a letter supporting his continued employment at Florida State Hospital: I have known John Harris for approximately eight years as an employee of Unit 4, Florida State Hospital. I have observed Mr. Harris over this time and he had become a concientious [sic] worker who relates well to the residents and to the staff in Unit 4. His recent attendance record has been good and Mr. Harris performs his job to the best of his ability. Mr. Harris is cooperative with his supervisors and supportive of his co-workers. For the past eleven years Mr. Harris has been, and was at the time of the formal hearing, married to Ollie Harris. Mr. Harris has two sons, one twenty years of age and the other eighteen years of age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services denying John Harris' request for an exemption from disqualification from employment pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 John Perry, Esquire District 2 Legal Office Department of Children and Family Services 2639 North Monroe Street Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black female, was hired by Respondent on May 2, 1978. Petitioner was employed as a psychiatric aide until June 12, 1981. From June 13, 1981 until Petitioner's dismissal by Respondent on October 17, 1985, her primary duties consisted of working with severely mentally ill patients as a Human Services Worker II at Northeast Florida State Hospital in Macclenny, Florida. At all times material to this proceeding, Petitioner was a permanent employee of Respondent. Petitioner's immediate supervisor at the time of the incident was Dan Gibbs, a black male. On September 2, 1985, Petitioner volunteered to work a consecutive eight (8) hour shift from 11:00 p.m. on September 2, 1985 until 7:00 a.m. on September 3, 1925. Petitioner's primary duty was to observe A. G., a suicidal patient, on a one-on-one procedure throughout the entire shift. The one-on-one procedure requires the observer to remain within arms reach of the assigned patient at all times without interruption. At approximately 2:30 a.m. on September 3, 1985, Emma Jordan, a white female registered nurse and Geri Knowles, a white female security officer, found the Petitioner asleep in the T.V. Room of Ward Nine (9) with her feet propped up on a chair, a pillow behind her back and a cover over her. Petitioner's co- worker, Freddy Jones, a probationary employee, was also found sleeping and was subsequently terminated by Respondent for sleeping on the job. Two patients, including A. G., were also asleep. A. G., the patient assigned to Petitioner for a one-on-one procedure, was no less than ten (10) feet from Petitioner. Ten (10) feet is more than arms length. There was sufficient light from the nurses' station and the television for Jordan and Knowles to determine that Petitioner was asleep. Jordan and Knowles observed Petitioner sleeping for about two (2) minutes before she was awakened by Jordan. After Petitioner was awakened, Jordan, whose duties included caring for patients on Ward Nine (9), questioned Petitioner about who was responsible for carrying out the one-on- one procedure and was informed by Petitioner that both she and Freddy Jones took turns. When Jordan attempted to explain the safety violation, Petitioner responded with "you ain't my supervisor, mother fucker." From this point, the exchange between Petitioner and Jordan escalated with Petitioner using more obscenities and making actual physical contact with Jordan. Additionally, Petitioner encouraged Jordan to "Fight like a woman, mother fucker." Both Dan Gibbs and Freddy Jones had to intercede and physically restrain Petitioner on two (2) occasions. Petitioner had previously been suspended for three (3) days in August, 1982 for sleeping while on duty. Prior to this incident, Petitioner was aware of Respondent's personnel policy concerning disciplinary action for sleeping on the job. Respondent's disciplinary rule provides for a "written reprimand or up to thirty days suspension or dismissal" for sleeping on the job. With each subsequent occurrence of the same violation, the rule imposes a more severe discipline. A predetermination hearing was held by Respondent on September 26, 1985 and Petitioner was subsequently discharged by Respondent on October 17, 1985 for sleeping on the job and malicious use of profane language. The evidence in the record does not reflect a similar instance where an employee (black or white) had been accused and disciplined for sleeping on the job while observing a patient on a one-on-one basis and exhibiting conduct such as the Petitioner exhibited in this instance. Respondent's hospital had, prior to September 3, 1985, suspended both black and white employees for sleeping on duty and subsequent to this incident dismissed a white male employee for sleeping on duty while assigned to a one-on- one supervision of a patient. There was no evidence to support Petitioner's contention that her termination was "retaliation" by Respondent because she had successfully challenged an earlier termination by Respondent for abandonment of position. The evidence clearly established that Respondent reinstated Petitioner after receiving additional information from Petitioner without the matter going to hearing. The evidence clearly establishes that Petitioner was discharged because she was found sleeping on the job while assigned to a suicidal patient on a one-on-one basis and for use of malicious profane language. The evidence clearly establishes that Respondent's actions were not inconsistent with previous disciplinary actions taken against other employees, both black and white, with similar offenses. There was insufficient evidence to show that Respondent's actions taken in discharging Petitioner were motivated by impermissible racial consideration.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Joann Postell has failed to establish that she was discharged due to her race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 12th day of August, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2391 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 in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.(a)(b) That Petitioner was employed by Respondent and terminated for sleeping on the job is adopted in Findings of Fact 1 and 13. The balance of the introductory sentence is rejected as not being a finding of fact but that Petitioner's argument that her dismissal was discriminatory. Rejected as not stating a fact but only why Petitioner denied being asleep. Adopted in substance in Finding of Fact 15. 2. Rejected as being argument rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. 5. Adopted in Finding of Facts 4 and 6. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 9. 8. Adopted in Finding of Fact 3. 9. Adopted in Finding of Fact 14. 10. Adopted in Finding of Fact 15. 11. Adopted in Finding of Fact 16. 12. Adopted in Finding of Fact 17. 13. Adopted in Finding of Fact 1a. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 David A. West, Esquire Legal Counsel Northeast Florida State Hospital Macclenny, Florida 32063 Carl G. Swanson, Esquire 335 East Bay Street Jacksonville, Florida 32202 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue to be determined is whether proposed amendments to Florida Administrative Code Rule 64B9-8.005 (rule 64B9-8.005 or "the proposed rule") constitute an invalid exercise of legislatively delegated authority? Specifically, the Second Amended Petition raises the following issues with respect to the proposed rule: a) whether the Board exceeded its rulemaking authority, citation to which is required by section 120.54(3)(a)1., Florida Statutes; b) whether the proposed rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by section 120.54(3)(a)1.; c) whether the proposed rule is vague; whether the Board has complied with the essential requirements of rulemaking provided in sections 120.54 and 120.541; and e) whether the proposed rule amendments are supported by the necessary facts.
Findings Of Fact Based upon the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits filed pursuant to section 120.57(1)(h), Florida Statutes, the following facts are found:2/ The Players Petitioner, FMA, is a professional association of doctors of allopathic and osteopathic medicine in Florida, located in Tallahassee. The FMA is organized and maintained for the benefit of approximately 20,000 licensed Florida physicians, with a primary purpose of acting on behalf of its members by presenting their common interests before various governmental entities of the State of Florida, including the Department of Health ("the Department" or "DOH") and the professional licensing boards under the Department's regulatory umbrella. Petitioner, FOMA, is the state association for osteopathic physicians in Florida. FOMA also maintains its headquarters in Tallahassee, Florida, and seeks to represent its members' common interests before various governmental entities in the State of Florida, including the Department and the professional licensing boards. Petitioner, FPMA, is the statewide professional organization for podiatric physicians, and is also located in Tallahassee. A primary purpose of FPMA is to represent the common interests of podiatric physicians before the Florida Legislature and state agencies and boards, including the Department and its regulatory boards, whose rules and enforcement proceedings impact the practice of podiatric medicine and the delivery of podiatric medical care to patients. Respondent, the Board, is the regulatory body charged with the licensing and regulation of nurses pursuant to section 20.43 and chapters 456 and 464, Florida Statutes. Intervenor, FANA, comprises approximately 3,500 certified registered nurse anesthetists ("CRNAs") and student nurse anesthetists currently licensed in Florida. A primary purpose of FANA is to represent its members' common interests before government agencies, including the Board. Intervenor, FNA, is a professional association of registered nurses licensed in the State of Florida, with a primary purpose of serving and supporting all registered nurses through professional development and advocacy. The Association has approximately 5,000 members, and advocates for its members before the Legislature and state agencies, including the boards within the Department. The History of the Proposed Rule Proposed Rules 64B9-17.001-.003 At issue in this proceeding is the proposed rule as reflected in the Notice of Change published in the Florida Administrative Weekly ("FAW") on April 6, 2012. In order to place the arguments and responses of the parties and intervenors in context, however, it is necessary to provide the history of the Board's efforts to adopt a rule dealing with the standards for use of conscious sedation.3/ On September 26, 2003, at Volume 29, Number 39, page 3797 of the FAW, Respondent published a Notice of Rule Development for proposed rules 64B9-17.001-.003, entitled "Statement of Intent and Purpose," "Definitions," and "Competency and Knowledge Requirements," respectively. The notice stated that the "Purpose and Effect" of the proposed rules was "to determine the permissible scope of practice of the registered nurse in the administration of new and advanced treatments and medications for conscious sedation." The identified subject area to be addressed specified that the new proposed rules "set forth the definitions of conscious sedation and the competency and knowledge requirements of registered nurses." The September 26, 2003, Notice listed the specific authority for the rules as section 464.003(3)(a)(which defines the practice of professional nursing) and section 464.006 (the Board's general rulemaking authority). As laws implemented, the Notice listed section 464.003(3)(a); section 464.012(3) (providing that advanced registered nurse practitioners shall perform listed functions within the framework of an established protocol); and section 464.015(1) and (5)(restricting the use of the titles RN and ARNP). Drafts of the proposed rules were published with the notice. On November 24, 2004, in Volume 30, Number 48, page 4962 of the FAW, the Board published a Notice of Proposed Rulemaking for proposed rules 64B9-17.001-003. The Purpose and Effect for the proposed rules was "[t]o set forth professional and educational standards and requirements for nurses who administer conscious sedation to patients, and to define which types of sedation are within the scope of registered nurses licensed under Chapter 464, F.A.C. [sic]." The specific authority and laws implemented were the same as those identified in the September 26, 2003, Notice of Rule Development. On March 4, 2005, in Volume 31, Number 9, page 875 of the FAW, the Board published its withdrawal of proposed rules 64B9-17.001-.003. On March 18, 2005, in Volume 31, Number 11, page 1074 of the FAW, the Board again noticed proposed rules 64B9-17.001- .003. The Purpose and Effect and Summary were identical to that in the November 24, 2004, Notice, with the exception that the reference to the Florida Administrative Code was corrected to reference Florida Statutes. While the referenced specific authority remained the same, section 464.019(1)(j) and (n) was added to the law implemented. Section 464.019, Florida Statutes (2004)(the version in effect at the time) provided the procedure for the approval of nursing programs; however, there were no subsections (1)(j) and (1)(n). On November 4, 2005, in Volume 31, Number 44, page 4025 of the FAW, the Board published a Notice of Change with respect to the proposed rules. The Notice of Change stated that the proposed rules were being changed in accordance with section 120.54(3)(d)1. Although not noted as a change, the law implemented listed for the first time section 464.018(1)(h), which makes it a disciplinary violation to commit unprofessional conduct, as defined by Board rule. On February 9, 2006, Suzanne G. Printy, Chief Attorney for the JAPC, wrote to counsel for the Board, to provide JAPC's review of the rule.4/ On April 14, 2006, in Volume 32, Number 15, page 257843 of the FAW, the Board published a Second Notice of Change related to proposed rules 64B9-17.001-.003. The Notice indicated that "several additional amendments to the proposed rule were made to address concerns expressed by the Joint Administrative Procedures Committee and by parties affected by the proposed rules." On June 22, 2006, Board counsel provided to JAPC a detailed response to JAPC's comments regarding the proposed rules. The letter stated that a Notice of Change "will be published shortly or has already been published." On July 11, 2006, Ms. Printy again wrote to Board counsel, expressing continued concerns with the proposed rules. Included in the concerns listed by Ms Printy were the following: [Re: 64B9-17.001(2)]: This rule states that "the act of administering medications for conscious sedation by a registered nurse without the education and verification of competency outlined in this rule would constitute unprofessional conduct . . ." Subparagraph 464.003(3)(a)2., F.S., defines the practice of nursing as including, "The administration of medications and treatments as prescribed or authorized by a duly licensed practitioner authorized by the laws of this state to prescribe such medications and treatments." No additional training or education is required by that statute cited as law implemented. Paragraphs 464.018(1)(h) and (n), F.S. do allow the board to define "unprofessional conduct" and to require licensees to engage solely in acts for which the licensee is qualified by training or experience. Nonetheless, neither of these statutes authorizes the board to establish separate and specific education and training requirements in order to practice professional nursing, i.e., to administer "medications and treatments as prescribed or authorized by a duly licensed practitioner . . . ." Licensees can be trained or educated in the area of anesthesia beyond the level of the basic nursing education programs specified in the rules of the Board of Nursing. If such licensees are then qualified by training or experience to administer such anesthesia, the practice of such licensees would neither constitute unprofessional conduct nor the failure to meet minimal standards of acceptable and prevailing nursing practice. Requiring all nurses to meet the education and verification requirements of the proposed rules in order to administer anesthesia appears to create an unauthorized level of licensure, thereby enlarging upon the requirements of ss. 464.003, .012 and .018, cited as law implemented. This rule also prohibits all registered nurses from administering medications for the purpose of any general anesthesia. Sections 464.003(3)(a)2. and .018(1)(n), F.S., authorize licensees to administer medications and treatments as prescribed or authorized by a duly licensed practitioner authorized by the laws of this state to prescribe such medications and treatments and to engage in acts for which the licensee is qualified by training or experience. If a licensee is both authorized by a practitioner to administer anesthesia, and is trained or educated in that practice, please provide and explain the specific statute authorizing the board to prohibit that licensee from administering general anesthesia without any opportunity to demonstrate competency in that area. This rule appears to contravene the laws being implemented. On August 25, 2006, counsel for the Board responded to JAPC's concerns. Ms. Printy wrote to Board counsel again on September 21, 2006, reiterating some of her ongoing concerns with the proposed rules. A discussion between Ms. Printy, Board counsel and the Executive Director of the Board apparently occurred, which is confirmed by letter dated November 2, 2006. In that letter, Ms. Printy outlines several changes to the proposed rules that were discussed. On December 11, 2006, a proposed change to the proposed rules was faxed to JAPC. A Notice of Change was published in Volume 32, Number 51, page 3309172 of the FAW, on December 22, 2006. On January 2, 2007, Ms. Printy wrote to Board counsel, again expressing concerns about the proposed rules as reflected in the most recent Notice of Change. Her concerns stated in part: These rules continue to require professional nurses to meet the specific training and education requirements of Rule 64B9-17.003, in order to induce conscious sedation. Please explain how these rules reflect the statutory authorization of s. 464.018(1)(n), F.S., that a nurse may be qualified by "training or experience" to meet the standards of acceptable and prevailing nursing practice to induce conscious sedation. In addition, Ch. 464, F.S., neither imposes nor authorizes training requirements to administer medications or treatments as prescribed or authorized by a licensed practitioner authorized to prescribe such medications and treatments. These rules, therefore, appear to enlarge upon the law implemented. See, Ortiz v. Department of Health, Board of Medicine, 882 So. 2d 402 (Fla. 4th DCA 2004) and Florida Department of Health & Rehabilitative Services v. McTigue, 387 So. 2d 454 (Fla. 1st DCA 1980). On January 10, 2007, the Florida Society of Anesthesiologists and the FMA filed a challenge to the proposed rules. Florida Soc'ty of Anesthesiologists v. Dep't of Health, Bd. of Nursing, Case No. 07-0122RP. On January 30, 2007, Board counsel again wrote to JAPC staff regarding the proposed rules. Among the statements in her letter, counsel cited to section 464.019, Florida Statutes, as giving the Board the authority to establish the minimal education requirements for licensure. She states: Your analysis confuses two issues: the minimal education or training required for licensure and (2) the scope of licensure, which is set forth in statutes, including disciplinary provisions. Competency for licensure and competency for disciplinary purposes are not identical. Not every registered nurse who has completed a minimal education may be qualified to administer conscious sedation- -applicants can achieve license [sic] as a registered nurse after completion of a two year program, or after completion of a four year "BSN" program. The "scope of practice" isn't different for the achievers of the Associate Degree program or the Bachelors Degree program; however, their training programs may prepare the BSN graduate to perform procedures/ treatments/skills at a more advanced level than an AS graduate is qualified to perform. The conscious sedation rules advise licensees that a registered (professional) nurse can administer the medication used to induce conscious sedation if the nurse meets competency requirements. On February 5, 2007, Ms. Printy advised Board counsel that she was suspending her review of the proposed rules in light of the pending rule challenge at DOAH, referenced above. On February 14, 2007, JAPC was notified that proposed rules 64B9- 17.001-.003 were being withdrawn. The Notice of Withdrawal was published in Volume 33, Number 8, page 3807558 of the FAW, on February 23, 2007. On March 19, 2007, Petitioners filed a Notice of Voluntary Dismissal in DOAH Case No. 07-0122, and the case was closed. Proposed Rule 64B9-8.005: December 2008-September 2011 On December 5, 2008, the Board published a Notice of Rule Development in Volume 34, Number 49, page 6495719, in the FAW. The Notice stated that the Purpose and Effect was "to establish professional guidelines for the administration of conscious sedation and to update the instances of unprofessional conduct," citing section 464.006 as specific authority and section 464.018 as the law implemented. No preliminary draft rule was published with the notice. A Notice of Proposed Rule was published on February 27, 2009, in Volume 35, Number 8, page 6828720 of the FAW. The Notice indicated that the Purpose and Effect of the proposed changes were to "revise the rule title and to eliminate actions that constitute violations of specific provisions of Chapters 464 and 456, F.S." The proposed amendments changed the rule name from "Disciplinary Proceedings" to "Unprofessional Conduct" and eliminated a host of violations previously included in the rule. The proposed amendment to rule 64B9-8.005 was noticed for a public hearing to be held April 1, 2009, and the rule became effective on April 28, 2009. Shortly thereafter, on May 1, 2009, the Board published a Notice of Rule Development in Volume 35, Number 17, page 7057834 of the FAW. The Notice indicated that "the Board proposes the development of rule amendments to address unprofessional conduct with regard to nurses." The text of the proposed rule development was not available, and no mention was made of conscious sedation. In the meantime, the Legislature considered and passed chapter 2009-168, Laws of Florida, amending section 464.019, with respect to the approval of nursing programs. The bill, which was approved by the Governor on June 11, 2009, and became effective July 1, 2009, substantially changed the provisions of section 464.019, and provided in part: (7) The board does not have any rulemaking authority to administer this section, except that the board shall adopt a rule that prescribes the format for submitting program applications under subsection (1) and submitting summary descriptions of program compliance under paragraph (2)(c). The board may not impose any condition or requirement on an institution submitting a program application, an approved program, or a program on probationary status except as expressly provided in this section. The board shall repeal all rules, or portions thereof, in existence on July 1, 2009, that are inconsistent with this subsection.[5] On July 2, 2009, in Volume 35, Number 26, page 7320607 of the FAW, the Board published a Notice of Proposed Rule with respect to rule 64B9-8.005. The stated Purpose and Effect of the proposed rule amendment indicated that "the proposed rule is necessary to identify unprofessional conduct as it pertains to nurses." It did not mention the term "conscious sedation." The proposed rule stated that it was a substantial rewording of the rule text, and provided: Unprofessional conduct shall include: Practicing beyond the scope of the licensee's license, education preparation or experience, including but not limited to: administration or monitoring the administration of any medication intended to create an altered level of consciousness that is a deeper level than moderate sedation for a surgical diagnostic or therapeutic procedure by a registered nurse or licensed practical nurse, provided: . . . . The remainder of the proposed rule amendment contained similar but not identical language to that proposed in the current proposed rule, establishing those circumstances when the administration of conscious sedation by a registered or licensed practical nurse would be acceptable, and establishing training requirements for certain procedures. The proposed rule eliminated all instances of unprofessional conduct previously listed that did not deal with the administration of conscious sedation. A Notice of Change was published July 17, 2009, to correct some cross-referencing within the proposed rule. A public hearing was noticed for October 9, 2009, and on March 19, 2010, in Volume 36, Number 11, page 8410693 of the FAW, the proposed rule as previously noticed was withdrawn. That same day, a new version of proposed rule 64B9- 8.005 was noticed as a substantial rewording of the rule. It listed under the Purpose and Effect and the Summary that "the proposed rule is to establish professional guidelines for the administration of conscious sedation and to update the instances of unprofessional conduct." The Notice changed the name of the rule back to "Disciplinary Proceedings" and again defined unprofessional conduct in terms of practicing beyond the scope of the licensee's license, educational preparation and experience, but providing specifics only with respect to the administration of conscious sedation. The proposed rule: added a restriction that propofol should only be administered by a practitioner experienced in general anesthesia and not by a registered nurse (except when the patient is continuously monitored and mechanically ventilated with a secured, artificial airway); established standards for the administration of prescribed pharmaceutical agents, including standards related to the practice setting; established training requirements; and defined the terms "deep sedation, "general anesthesia," moderate sedation," and "immediately available." On April 10, 2010, Marjorie Holloday, a Senior Attorney for JAPC, wrote to Board counsel regarding her review of the proposed rule. Ms. Holloday raised several questions and concerns regarding the proposed rule, including: whether it was the intent of the Board to eliminate conduct previously listed in the rule as bases for discipline as unprofessional conduct; whether the Notice of Rule Development given for the proposed rule provided adequate notice to all those who would be affected by the proposed rule; whether the proposed rule conflicted with rules of other boards; and whether the proposed rule may have an impact on small businesses, such as physicians' offices, hospitals, and surgery centers. Notice of a public hearing on the proposed rule was published on April 30, 2010, in Volume 36, Number 17, page 8572877 of FAW, to be held June 11, 2010. The Notice indicated that the Board would hold a hearing on proposed rule 64B9-8.005. The general subject matter to be addressed was listed, not as unprofessional conduct or disciplinary proceedings, but as conscious sedation. The proposed rule as noticed on March 19, 2010, was withdrawn on August 20, 2010. That same day a new Notice of Proposed Rulemaking with respect to rule 64B9-8.005 was published. This version of the proposed rule changes restored the prior instances of unprofessional conduct, as well as the name of the rule, and added the provisions related to the administration of conscious sedation as section (15). The proposed rule also added to the definitions included in section the terms "palliative sedation" and "refractory symptoms." The Purpose and Effect and Summary for the rule stated that it was to establish professional guidelines for the administration of conscious sedation and to update the instances of unprofessional conduct. On September 17, 2010, a public hearing on the proposed rule was noticed for October 8, 2010. The notice listed the subject matter to be considered as "conscious sedation." No mention was made in the Notice of "unprofessional conduct." On November 4, 2010, Ms. Holloday wrote to counsel for the Board, indicating that she did not agree with some of the analysis previously provided to address concerns with the proposed rule, and that some of her concerns had not been addressed. On November 4, 2010, another Notice of Change was published, correcting the omission of a "strikethrough" in the previous notice. On November 9, 2010, Ms. Holloday wrote to Board counsel, expressing her understanding that as of November 8, 2010, the Board elected to toll the time for the filing of the proposed rule for adoption pursuant to section 120.54(3)(e)6. On November 22, 2010, Ms. Holloday again wrote to Board counsel supplementing her concerns with the proposed rule. Ms. Holloday referenced chapter 2010-279, Laws of Florida, and requested that counsel review the criteria set forth in chapter 2010-279, section 2, and advise whether the rule would need ratification by the Legislature pursuant to section 120.541(3), and whether a statement of estimated regulatory costs was now required. A public hearing was noticed in the FAW on December 23, 2010, to take place February 4, 2011, listing proposed rule 64B9- 8.005 and the general subject matter, "conscious sedation." On December 21, 2010, Ms. Holloday notified Board counsel that JAPC staff was considering recommending an objection to the proposed rule at a February 2011 committee meeting. On February 11, 2011, counsel wrote to Ms. Holloday, notifying her that the Board determined that the rule amendments would not have an adverse impact on small businesses, or directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate within one year of implementation. The letter also notified Ms. Holloday that the Board did not believe that the rule would require legislative ratification. On March 7, 2011, Ms. Holloday wrote to Board counsel memorializing JAPC's staff's concerns regarding the proposed rule, to which staff anticipated recommending an objection at the next JAPC meeting. On March 20, 2011, a copy of the JAPC agenda for March 28, 2011, was provided to the Chair of the Board, as well as counsel and other officials at the Department. On March 29, 2011, the Chair of the Board was notified by letter that JAPC had objected to proposed rule 64B9-8.005(15). The Objection Report was attached to the letter. After a series of communications between JAPC staff and Board counsel, on September 30, 2011, in Volume 37, Number 39, page 10438963, proposed rule 64B9-8.005, as noticed August 20, 2010, was withdrawn. The Current Proposed Amendments to Rule 64B9-8.005 On October 7, 2011, the Board noticed proposed rule 64B9-8.005 in Volume 37, Number 40, page 10484359 of the FAW. As noticed, the stated Purpose and Effect of the proposed rule is to "establish professional guidelines for the administration of conscious sedation and to update the instances of unprofessional conduct." The Summary is similar. With respect to the Summary of Statement of Estimated Regulatory Cost, the notice provided: During discussion of the economic impact of this rule at its Board meeting, the Board, based upon the expertise and experience of its members, determined that a Statement of Estimated Regulatory Cost (SERC) was not necessary and that these rule amendments will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time. The Board has determined that this will not have an adverse impact on small business, or likely increase regulatory costs in excess of $200,000 in the aggregate within 1 year after implementation of the rule. Any person who wishes to provide information regarding the statement of estimated costs, or to provide a proposal for a lower regulatory cost alternative must do so in writing within 21 days of this notice. The Notice identifies the date on which the Notice of Proposed Rule Development was published in the FAW as May 1, 2009. Rulemaking authority is listed as sections 464.006 and 464.018(1)(h), and the law implemented is listed as section 464.018(1)(h). Section 464.018(1)(h) provides that "unprofessional conduct, as defined by board rule" constitutes grounds for denial of a license or for disciplinary action against a licensee. There is no mention in section 464.018 of conscious sedation. The text of the proposed rule as noticed on October 7, 2011, is as follows: 64B9-8.005 Unprofessional Conduct. through (12) No change. (13)(14) Using force against a patient, striking a patient, or throwing objects at a patient; (14)(15) Using abusive, threatening or foul language in front of a patient or directing such language toward a patient; (15)(13) Practicing beyond the scope of the licensee's license, educational preparation or nursing experience;, including but not limited to: administration or monitoring the administration of any medication intended to create an altered level of consciousness that is a deeper level than moderate sedation for a surgical, diagnostic or therapeutic procedure by a registered nurse or licensed practical nurse; provided: A registered nurse may, pursuant to a duly authorized practitioner's order, administer or monitor the administration of medications to achieve deep sedation: a) to a patient as part of a life or limb threatening situation when a practitioner who has demonstrated competence in emergency airway management is physically present with the patient; or b) to a patient who is continuously monitored and mechanically ventilated with a secured, artificial airway. Examples of medications used for deep sedation in this situation include, but are not limited to, propofol, pentothal and etomidate. Due to the potential for rapid, profound changes in sedative/anesthetic depth and the lack of antagonist medications, even if moderate sedation is intended, patients receiving propofol should receive care consistent with that required for deep sedation. Therefore the administration of propofol should only be performed by a practitioner qualified by training and education in the administration of general anesthesia or in a hospital licensed under Chapter 395, Florida Statutes by a duly authorized practitioner credentialed by that hospital to administer deep sedation and not by a registered nurse, with the exception of those limited instances outlined in this rule. When a physician is actively managing a patient's sedation, a registered nurse may monitor the patient under circumstances that may include both moderate and deep sedation. A registered nurse may administer prescribed pharmacologic agents to non- mechanically ventilated patients for the purpose of moderate sedation in anticipation of anxiety and or discomfort during a time- limited surgical, diagnostic or therapeutic procedure. The registered nurse must continuously monitor the patient throughout the procedure and have no other responsibilities that would require leaving the patient unattended or would compromise continuous monitoring during the procedure. The registered nurse must document the patient's level of consciousness at least every five minutes during the procedure. In the event a deeper level of sedation (such as deep sedation or general anesthesia) unintentionally results from the administration of prescribed pharmacologic agents, the procedure must be stopped and the level of sedation returned to moderate sedation with the assistance of the prescribing physician or credentialed anesthesia provider. A registered nurse or licensed practical nurse may, pursuant to duly authorized practitioner order, administer or monitor the administration of medications for palliative sedation in a hospice program. In order to administer or monitor any pharmacologic agents in accordance with subsection (a) or (b) above, a registered nurse must: Prior to any administration or monitoring of any pharmacologic agents, successfully demonstrate competence which reflects the extent of privileges requested, including a criteria-based competency evaluation. At a minimum, the competency demonstration will include: education in pharmacology and physiology, physical assessment and monitoring techniques, airway anatomy, airway management techniques and an opportunity for skill development. The evaluative criteria will cover knowledge and psychomotor skills in assessment and monitoring, principles of pharmacodynamics and pharmacokinetics (onset, duration, distribution, metabolism, elimination, intended and adverse effects, interactions, dosages and contraindications), basic and difficult airway management, mechanical ventilation, and cardiopulmonary resuscitation. The registered nurse must also be certified in advanced cardiac life support; Complete a patient assessment and ensure that the practice setting requires that the physician prescribing the pharmacologic agent has evaluated the patient based on established criteria; Pharmacologic agents that may be administered by a registered or practical nurse pursuant to paragraphs (b) and (c) shall not include medications that are intended to result in loss of consciousness such as propofol, penthothal, dexmedetomidine, or any medication which the manufacturer's package insert states should be administered only by individuals trained in the administration of general anesthesia. Ensure that the practice setting requires that the prescribing practitioner, or in a hospital licensed under Chapter 395, Florida Statutes, a practitioner who has demonstrated competence in emergency airway management is physically present throughout the procedure and immediately available during the recovery period unless the patient is mechanically ventilated; Ensure that written policies and procedures for managing patients who receive moderate sedation are reviewed periodically and are readily available within the practice setting; Ensure that the practice setting has in place a quality assurance and performance improvement process that measures patient, process and structural outcome indicators; and Evaluate the patient for discharge readiness based on specific discharge criteria and ensure that the practice setting requires that the physician approves of the patient discharge. Administration or monitoring of the administration of medication to achieve sedation at any level under the circumstances set forth in this rule is beyond the scope of practice of licensed practical nurses. The following definitions apply for purposes of this rule: Deep sedation means a medication- induced depression of consciousness that allows patients to respond purposefully only after repeated or painful stimulation. The patient cannot be aroused easily, and the ability to maintain a patent airway independently may be impaired with spontaneous ventilation possibly inadequate. Cardiovascular function usually is adequate and maintained. General anesthesia means the patient cannot be aroused, even by painful stimulation, during this medication-induced loss of consciousness. Patients usually require assistance in airway maintenance and often require positive pressure ventilation due to depressed spontaneous ventilation or depression of neuromuscular function. Cardiovascular function may also be impaired. Moderate sedation means a minimally depressed level of consciousness that allows a surgical patient to retain the ability to maintain a patent airway independently and continuously and respond appropriately to verbal commands and physical stimulation. Immediately available means having a health care provider trained in advanced cardiac life support and resuscitation skills available to assist with patient care within five minutes. Palliative sedation means the use of medications intended to provide relief of intractable or refractory symptoms by inducing varying degrees of unconsciousness in imminently dying patients. Refractory symptoms means symptoms that cannot be adequately controlled in a tolerable time frame despite use of alternate therapies, and seem unlikely to be controlled by further invasive or noninvasive therapies without excessive or intolerable acute or chronic side effects or complications. On October 21, 2011, in Volume 37, Number 42, page 10545566 of the FAW, the proposed rule was noticed for a public hearing to be conducted on December 2, 2011, in Dania Beach, Florida. The notice identified the rule number and rule title as rule 64B9-8.005: Unprofessional Conduct, and provided that the general subject matter to be considered was conscious sedation. On October 17, 2011, Ms. Holloday wrote to Board counsel regarding her review of the proposed rule as noticed October 7, 2011. Her review included the following statements regarding the rule: Please explain whether education in the topics enumerated in this rule text is the exclusive method of demonstrating competence to administer or monitor pharmaceutical agents to achieve deep or moderate sedation. If so, this language, like the language in the rule to which the Committee objected on March 28, 2011, does not appear to allow a registered nurse to demonstrate competency by training or experience. This may, in effect, establish separate and specific education and training requirements to practice professional nursing, creating an unauthorized level of licensure for registered nurses, thereby enlarging upon the provisions of the Nurse Practice Act by requiring educational courses not otherwise required by subsection 464.003(2), Florida Statutes. See § 120.52(8)(c), Fla. Stat. Further, section 464.018, Florida Statutes, is entitled "Disciplinary actions," and paragraph 464.018(1)(h), Florida Statutes, provides that acts of "unprofessional conduct," as provided by board rule may subject a licensee to disciplinary action. Requiring an unauthorized level of licensure, by board rule, is not "unprofessional conduct," which could subject registered nurses to disciplinary action. It does not appear that rule subparagraph [(15)](d)1. is necessary to accomplish the apparent or expressed objectives of paragraph 464.018(1)(h), Florida Statutes, cited as the law implemented. See § 120.545(1)(g), Fla. Stat. Paragraph (15)(d)3. of the proposed rule as noticed October 7, 2011, prohibits registered or licensed practical nurses from administering pharmacological agents that are intended to result in loss of consciousness, such as propofol, penthothal, dexmedetomidine, or any medication which the manufacturer's package insert states should be administered only by individuals trained in the administration of general anesthesia. With respect to this paragraph, Ms. Holloday's review stated: As you are aware, similar language was contained in the proposed rule to which the Committee voted an objection on March 28, 2011. Your letter dated September 21, 2011, stated, "[T]he Board will not amend the rule with regard to the prohibitions of administration of identified medications. The Board respectfully disagrees with the Committee's interpretation of Sections 464.003(20) and 458.303(2), Florida Statutes." Please explain how the Board disagrees with the Committee's interpretation of Section 464.003(20), Florida Statutes. * * * As subsection 464.003(20) establishes the registered nurse's statutory scope of practice, it appears this prohibition is not consistent with the expressed legislative intent stated in subsection 456.003(6), Florida Statutes, which states: Unless expressly and specifically granted in statute, the duties conferred on the boards do not include the enlargement, modification, or contravention of the lawful scope of practice of the profession regulated by the boards. This subsection shall prohibit the boards, or the department when there is no board, from taking disciplinary action or issuing a declaratory statement. Changing the statutory scope of practice of a registered nurse by rule is not "unprofessional conduct" and is not consistent with the legislative intent of sections 456.003(6) and 464.018(1)(h), Florida Statutes. See § 120.545(1)(f), Fla. Stat. On December 21, 2011, counsel for the Board wrote Ms. Holloday to advise her that the Board had considered her comments at its public hearing on December 2, 2011. Counsel advised that some changes would be made to the rule to address some of the objections stated, but that the Board disagreed with her conclusion that the rule was requiring an unauthorized level of licensure, and that registered nurses who administer the identified drugs should not be subject to disciplinary action. On December 16, 2011, in Volume 37, Number 50, page 10781567 of the FAW, the Board published a Notice of Public Hearing, scheduled for February 3, 2012, identifying rule 64B9- 8.005. The general subject matter to be considered was listed as "unprofessional conduct." On March 22, 2012, Ms. Holloday again wrote to Board counsel regarding proposed amendments to rule 64B9-8.005, asking about whether several identified changes had been made to the rule and whether the Board still intended to make those changes. Ms. Holloday also questioned the Board's conclusion that a statement of estimated regulatory costs was unnecessary, stating: The rule requires registered nurses, who administer medications to achieve sedation, to demonstrate competency pursuant to the provisions of rule subparagraph (15)(d)1. That rule subparagraph requires the registered nurse to successfully demonstrate competence which reflects the extent of privileges requested, including a criteria- based competency evaluation. The competency demonstration, at a minimum, includes certain educational requirements. The registered nurse is also required to be certified in advanced cardiac life support. * * * The costs of this competency demonstration and the certification in advanced cardiac life support will be incurred by someone. The nurse, the nurse's employer, and/or a facility, will be required to cover the costs of this education, training, evaluation, and certification. It appears that the economic impact of this rule should include consideration of the number of persons and entities that will be impacted financially. Likewise, it appears that the economic impact of this rule should take into consideration how much this education, training, evaluation, and certification will cost. Please explain whether the Board considered the direct and indirect increased regulatory costs imposed by this rule. The letter also reiterated that the rule amendments did not appear to be appropriate in a rule defining "unprofessional conduct." On April 6, 2012, in Volume 38, Number 14, page 11336310 of the FAW, the Board published a Notice of Change with respect to the proposed rule, stating that the changes were proposed due to concerns by JAPC in its letter dated October 17, 2011. The Notice published changes to paragraph (15), but did not identify what specific changes were made. The Notice provided that, "[w]hen changed, the proposed subsection (15) shall read:" (15) Practicing beyond the scope of the licensee's license, educational preparation or nursing experience, including but not limited to: administration or monitoring by a registered nurse or licensed practical nurse of the administration of any medication intended to create moderate or deep sedation for a surgical, diagnostic or therapeutic procedure; provided: A registered nurse may, pursuant to a duly authorized practitioner's order, administer or monitor the administration of medications to achieve deep sedation: 1) to a patient as part of a life or limb threatening situation when a practitioner who has demonstrated competence in emergency airway management is physically present with the patient; or 2) to a patient who is continuously monitored and mechanically ventilated with a secured, artificial airway. Examples of medications used for deep sedation in this situation include, but are not limited to, propofol, penthothal and etomidate. Due to the potential for rapid, profound changes in sedative/anesthetic depth and the lack of antagonist medications, even if moderate sedation is intended, patients receiving propofol shall receive care consistent with that required for deep sedation. Therefore the administration of propofol shall not be performed by a licensee who is not a duly authorized practitioner with the exception of those limited instances outlined in this rule. When a duly authorized practitioner is actively managing a patient's sedation, a registered nurse may monitor the patient under deep sedation. A registered nurse may administer prescribed pharmacologic agents to mechanically ventilated and non-mechanically ventilated patients for the purpose of moderate sedation in anticipation of anxiety and or discomfort during a time-limited surgical, diagnostic or therapeutic procedure. The registered nurse must continuously monitor the patient throughout the procedure and have no other responsibilities that would require leaving the patient unattended or would compromise continuous monitoring during the procedure. The registered nurse must document the non- mechanically ventilated patient's level of consciousness at least every five minutes during the procedure. In the event a deeper level of sedation (such as deep sedation or general anesthesia) unintentionally results from the administration of prescribed pharmacologic agents to the non-mechanically ventilated patient, the registered nurse must immediately notify the duly authorized practitioner and document the actions taken until the patient's level of sedation returned to moderate sedation with the assistance of the duly authorized practitioner. Pharmacologic agents that may be administered by a registered nurse pursuant to this subsection shall not include medications that [are] intended to result in loss of consciousness such as propofol, penthothal, etomidate, or any medication which the manufacturer's package insert states should be administered only by individuals trained in the administration of general anesthesia. When a duly authorized practitioner is actively managing a patient's sedation, a registered nurse may monitor the patient under moderate sedation. A registered nurse or licensed practical nurse may, pursuant to duly authorized practitioner's order, administer or monitor the administration of medications for palliative sedation in a hospice program. In order to administer or monitor any pharmacologic agents to achieve deep sedation in accordance with paragraph (a) above, a registered nurse must: Prior to any administration or monitoring of any pharmacologic agents, successfully demonstrate competence which reflects the extent of privileges requested, including a criteria-based competency evaluation. The evaluative criteria for the competency demonstration will cover knowledge and psychomotor skills in physical assessment and monitoring of sedated patients, principles of pharmacodynamics and pharmacokinetics (onset, duration, distribution, metabolism, elimination, intended and adverse effects, interactions, dosages and contraindications) of the pharmacologic agents being administered or monitored, basic and difficult airway management, mechanical ventilation, and cardiopulmonary resuscitation. The registered nurse must also be certified in advanced cardiac life support that is appropriate for the patient's age; Complete a patient assessment and ensure that the practice setting requires that the duly authorized practitioner prescribing the pharmacologic agent has evaluated the patient based on established criteria; Ensure that the practice setting requires that the prescribing practitioner, or in a hospital licensed under Chapter 395, Florida Statutes, a practitioner who has demonstrated competence in emergency airway management is physically present throughout the procedure and immediately available during the recovery period unless the patient is mechanically ventilated; Ensure that the practice setting has in place a quality assurance and performance improvement process that measures patient, process and structural outcome indicators; and Evaluate the patient for discharge readiness based on specific discharge criteria and ensure that the practice setting requires that the physician approves of the patient discharge. In order to administer or monitor any pharmacologic agents to achieve moderate sedation in accordance with subsection (b) above, a registered nurse must: Ensure that the practice setting requires that the prescribing practitioner, or in a hospital licensed under Chapter 395, Florida Statutes, a practitioner who has demonstrated competence in emergency airway management is physically present throughout the procedure and immediately available during the recovery period unless the patient is mechanically ventilated; Ensure that written policies and procedures for managing patients who receive moderate sedation are reviewed periodically and are readily available within the practice setting; Ensure that the practice setting has in place a quality assurance and performance improvement process that measures patient, process and structural outcome indicators; and Evaluate the patient for discharge readiness based on specific discharge criteria and ensure that the practice setting requires that the physician approves of the patient discharge. Administration or monitoring of the administration of medication to achieve moderate or deep sedation is beyond the scope of practice of licensed practical nurses, except as described in paragraph (c) above. The following definitions apply for purposes of this rule: Deep sedation means a medication- induced depression of consciousness that allows patients to respond purposefully only after repeated or painful stimulation. The patient cannot be aroused easily, and the ability to maintain a patent airway independently may be impaired with spontaneous ventilation possibly inadequate. Cardiovascular function usually is adequate and maintained. General anesthesia means the patient cannot be aroused, even by painful stimulation, during this medication-induced loss of consciousness. Patients usually require assistance in airway maintenance and often require positive pressure ventilation due to depressed spontaneous ventilation or depression of neuromuscular function. Cardiovascular function may also be impaired. Moderate sedation means a minimally depressed level of consciousness that allows a patient to retain the ability to maintain a patent airway independently and continuously and respond appropriately to verbal commands and physical stimulation. Immediately available means having a health care provider trained in advanced cardiac life support and resuscitation skills available to assist with patient care within five minutes. Palliative sedation means the use of medications intended to provide relief of intractable or refractory symptoms by inducing varying degrees of unconsciousness in imminently dying patients. Refractory symptoms means symptoms that cannot be adequately controlled in a tolerable time frame despite use of alternate therapies, and seem unlikely to be controlled by further invasive or noninvasive therapies without excessive or intolerable acute or chronic side effects or complications. Duly authorized practitioner means a physician licensed under Chapter 458 or Chapter 459, a dentist licensed under Chapter 466 who is authorized to order and administer anesthesia or sedation, a podiatrist who is authorized under Chapter 461, a certified registered nurse anesthetist authorized under Chapter 464, and by protocol to order and administer anesthesia or sedation, or a certified nurse midwife authorized under Chapter 464 and by protocol to order or administer anesthetics. As stated, the Notice of Change as published contains no "strike through" or underlining to delineate the changes to the proposed rule, which is required pursuant to Florida Administrative Code Rule 1-1.011(5)(f). However, a comparison of the rule as published October 7, 2011, compared to the Notice of Change published April 6, 2012, reveals the following: (15)(13) Practicing beyond the scope of the licensee's license, educational preparation or nursing experience;, including but not limited to: administration or monitoring by a registered nurse or licensed practical nurse of the administration of any medication intended to create an altered level of consciousness that is a deeper level than moderate or deep sedation for a surgical, diagnostic or therapeutic procedure by a registered nurse or licensed practical nurse; provided: A registered nurse may, pursuant to a duly authorized practitioner's order, administer or monitor the administration of medications to achieve deep sedation: a) to a patient as part of a life or limb threatening situation when a practitioner who has demonstrated competence in emergency airway management is physically present with the patient; or b) to a patient who is continuously monitored and mechanically ventilated with a secured, artificial airway. Examples of medications used for deep sedation in this situation include, but are not limited to, propofol, pentothal and etomidate. Due to the potential for rapid, profound changes in sedative/anesthetic depth and the lack of antagonist medications, even if moderate sedation is intended, patients receiving propofol should receive care consistent with that required for deep sedation. Therefore the administration of propofol shall not be should only be performed by a licensee who is not a duly authorized practitioner practitioner qualified by training and education in the administration of general anesthesia or in a hospital licensed under Chapter 395, Florida Statutes by a duly authorized practitioner credentialed by that hospital to administer deep sedation and not by a registered nurse, with the exception of those limited instances outlined in this rule. When a physician is actively managing a patient's sedation, a registered nurse may monitor the patient under circumstances that may include both moderate and deep sedation. A registered nurse may administer prescribed pharmacologic agents to non- mechanically ventilated patients for the purpose of moderate sedation in anticipation of anxiety and or discomfort during a time- limited surgical, diagnostic or therapeutic procedure. The registered nurse must continuously monitor the patient throughout the procedure and have no other responsibilities that would require leaving the patient unattended or would compromise continuous monitoring during the procedure. The registered nurse must document the non- mechanically ventilated patient's level of consciousness at least every five minutes during the procedure. In the event a deeper level of sedation (such as deep sedation or general anesthesia) unintentionally results from the administration of prescribed pharmacologic agents to the non-mechanically ventilated patient, the registered nurse must immediately notify the duly authorized practitioner and document the actions taken until , the procedure must be stopped and the level of sedation returned to moderate sedation with the assistance of the prescribing physician or credentialed anesthesia provider duly authorized practitioner. Pharmacologic agents that may be administered by a registered nurse pursuant to this subsection shall not include medications that intended to result in loss of consciousness such as propofol, penthathol, etomidate, or any medication which the manufacturer's package insert states should be administered only by individuals trained in the administration of general anesthesia. When a duly authorized practitioner is actively managing a patient's sedation, a registered nurse may monitor the patient under moderate sedation. A registered nurse or licensed practical nurse may, pursuant to duly authorized practitioner order, administer or monitor the administration of medications for palliative sedation in a hospice program. In order to administer or monitor any pharmacologic agents to achieve deep sedation in accordance with paragraph(a) subsection (a) or (b) above, a registered nurse must: Prior to any administration or monitoring of any pharmacologic agents, successfully demonstrate competence which reflects the extent of privileges requested, including a criteria-based competency evaluation. At a minimum, the competency demonstration will include: education in pharmacology and physiology, physical assessment and monitoring techniques, airway anatomy, airway management techniques and an opportunity for skill development. The evaluative criteria for the competency demonstration will cover knowledge and psychomotor skills in assessment and monitoring of sedated patients, principles of pharmacodynamics and pharmacokinetics (onset, duration, distribution, metabolism, elimination, intended and adverse effects, interactions, dosages and contraindications) of the pharmacologic agents being administered or monitored, basic and difficult airway management, mechanical ventilation, and cardiopulmonary resuscitation. The registered nurse must also be certified in advanced cardiac life support that is appropriate for the patient's age; Complete a patient assessment and ensure that the practice setting requires that the duly authorized practitioner physician prescribing the pharmacologic agent has evaluated the patient based on established criteria; Pharmacologic agents that may be administered by a registered or practical nurse pursuant to paragraphs (b) and (c) shall not include medications that are intended to result in loss of consciousness such as propofol, penthothal, dexmedetomidine, or any medication which the manufacturer's package insert states should be administered only by individuals trained in the administration of general anesthesia. Ensure that the practice setting requires that the prescribing practitioner, or in a hospital licensed under Chapter 395, Florida Statutes, a practitioner who has demonstrated competence in emergency airway management is physically present throughout the procedure and immediately available during the recovery period unless the patient is mechanically ventilated; Ensure that written policies and procedures for managing patients who receive moderate sedation are reviewed periodically and are readily available within the practice setting; 46. Ensure that the practice setting has in place a quality assurance and performance improvement process that measures patient, process and structural outcome indicators; and Evaluate the patient for discharge readiness based on specific discharge criteria and ensure that the practice setting requires that the physician approves of the patient discharge. In order to administer or monitor any pharmacologic agents to achieve moderate sedation in accordance with subsection (b) above, a registered nurse must: Ensure that the practice setting requires that the prescribing practitioner, or in a hospital licensed under Chapter 395, Florida Statutes, a practitioner who has demonstrated competence in emergency airway management is physically present throughout the procedure and immediately available during the recovery period unless the patient is mechanically ventilated; Ensure that written policies and procedures for managing patients who receive moderate sedation are reviewed periodically and are readily available within the practice setting; Ensure that the practice setting has in place a quality assurance and performance improvement process that measures patient, process and structural outcome indicators; and Evaluate the patient for discharge readiness based on specific discharge criteria and ensure that the practice setting requires that the physician approves of the patient discharge. (f)(e) Administration or monitoring of the administration of medication to achieve moderate or deep sedation at any level under the circumstances set forth in this rule is beyond the scope of practice of licensed practical nurses, except as described in paragraph (c) above.. (g)(f) The following definitions apply for purposes of this rule: Deep sedation means a medication- induced depression of consciousness that allows patients to respond purposefully only after repeated or painful stimulation. The patient cannot be aroused easily, and the ability to maintain a patent airway independently may be impaired with spontaneous ventilation possibly inadequate. Cardiovascular function usually is adequate and maintained. General anesthesia means the patient cannot be aroused, even by painful stimulation, during this medication-induced loss of consciousness. Patients usually require assistance in airway maintenance and often require positive pressure ventilation due to depressed spontaneous ventilation or depression of neuromuscular function. Cardiovascular function may also be impaired. Moderate sedation means a minimally depressed level of consciousness that allows a surgical patient to retain the ability to maintain a patent airway independently and continuously and respond appropriately to verbal commands and physical stimulation. Immediately available means having a health care provider trained in advanced cardiac life support and resuscitation skills available to assist with patient care within five minutes. Palliative sedation means the use of medications intended to provide relief of intractable or refractory symptoms by inducing varying degrees of unconsciousness in imminently dying patients. Refractory symptoms means symptoms that cannot be adequately controlled in a tolerable time frame despite use of alternate therapies, and seem unlikely to be controlled by further invasive or noninvasive therapies without excessive or intolerable acute or chronic side effects or complications. Duly authorized practitioner means a physician licensed under Chapter 458 or Chapter 459, a dentist licensed under Chapter 466 who is authorized to order and administer anesthesia or sedation, a podiatrist who is authorized under Chapter 461, a certified registered nurse anethestist authorized under Chapter 464, and by protocol to order and administer anesthesia or sedation, or a certified nurse midwife authorized under Chapter 464 and by protocol to order or administer anesthetics. On April 18, 2012, notice of a rules hearing to be conducted May 11, 2012, was forwarded to JAPC. On April 25, 2012, Petitioners filed the Petition for Administrative Determination of Invalidity of Proposed Rule at the Division of Administrative Hearings, which gave rise to these proceedings. On April 27, 2012, in Volume 38, Number 17, page 11418954 of the FAW, the Board published the Notice of Public Hearing, referenced in paragraph 58 above, scheduling a public hearing on proposed rule 64B9-8.005, as noticed on October 7, 2011, for May 11, 2012, in Fort Lauderdale. The subject matter to be considered was listed as "Unprofessional Conduct." Although Petitioners submitted the documents from JAPC regarding the adoption process, the rulemaking record of the Board has not been submitted by any participant in this proceeding. No evidence was submitted suggesting that any party submitted a lower cost regulatory alternative to proposed rule 64B9-8.005. Standing Petitioners are substantially affected by the proposed rule. Licensed allopathic, osteopathic, and podiatric physicians, whose interests Petitioners represent, are specifically defined as duly-authorized practitioners in the April changes to the proposed rule. The rule, as proposed, affects the safety of patients treated by allopathic, osteopathic, and podiatric physicians when moderate to deep sedation is required. Patient safety is also the basis asserted for standing by FANA. As an example, with respect to patient safety, Dr. Joshua Lenchus, D.O. (a member of both the FMA or the FOMA), was asked how the rule would affect him, and he referred specifically to paragraph (15)(e), saying: . . . . It has an effect on me as a registered nurse insuring that the practice setting requires, et cetera. I don't know how that would be logistically implemented or operationalized. That could potentially cause a delay in the performance of a procedure on a patient, or the cancellation of a procedure on a patient, or untoward harm on a patient due to the lack of provision of that level of sedation. Q. Do you believe that this paragraph one requires something more than someone there who has demonstrated competency in airway management? A. As I read paragraph one, the first four words indicate that a registered nurse must do these things. If a registered nurse must insure what the practice setting requires, that seems to me that it is not sufficient enough that the setting has a practitioner who has demonstrated competence, but that the registered nurse is going to be held to insure that the practice setting requires that. * * * So the way that I read it -- you asked about me, personally, -- the way that I interpret that is that could cause a significant delay, revision of policies, hiring of different staff, creation of a different policy and procedure manual. It can ensue in a host of things that can lead to patient delay, harm the provision of services, et cetera. Nurses do not perform the functions described in the rule in a vacuum. Examples of physicians whose specialties would be substantially affected by the proposed rule are gastroenterologists, pulmonologists, hospitalists, internists, pediatricians, critical care physicians, and emergency room physicians. These specialists, among others, would be affected by the provisions of the proposed rule because these fields have the ability to use moderate sedation in the performance of procedures in the normal clinical context of their daily practice. Prohibiting or restricting registered nurses from being involved in the administration or monitoring of sedative agents would affect who these practitioners would be able to employ and/or what procedures could be performed with the use of existing staff. Whether they currently use CRNAs as opposed to registered nurses is beside the point: their present and future practices clearly would be affected by the scope of practice that could be performed by employees involved in the administration of conscious sedation. According to Dr. Lenchus, based upon those members of the FMA that indicate a specialty, at least one third of the FMA's members are in specialty areas that routinely would use sedation in their practices. With respect to FOMA, the top four areas of specialty, all of which routinely use conscious sedation, comprise approximately 50 percent of the organization's membership. Mr. Schwartz testified that, with respect to the FPMA, approximately 50-70 percent of its members have practices with a surgical component that would put them in a position to utilize conscious sedation.
Findings Of Fact On March 7, 1977, Smith completed and forwarded to the Board his application for licensure as a licensed practical nurse pursuant to the provisions of Section 464.21(1), Florida Statutes. Question eleven of that application asks whether the applicant has ever been arrested and convicted for an offense other than a minor traffic violation. Smith answered the question yes and in the space provided for an answer in the application detailed his arrest and conviction for driving while indoxicated in the State of Florida. No other notation is made on the application form regarding any other arrests and convictions. However, Smith did in fact have another arrest and conviction occurring in January, 1964, in the State of Michigan. At that time, Smith was found guilty of the crime of taking indecent and improper liberties with a female child under the age of sixteen, that being a violation of Section 750.336, Michigan Compiled Laws Annotated. The trial court found that Smith took his eleven year old niece to bed with him and "placed his penis between the girl's thighs and started to masturbate over her." Had Smith committed the same act in Florida for which he was convicted in Michigan in 1964, he could have been charged under Section 800.04, Florida Statutes, proscribing lewd, lascivious or indecent assault or acts upon or in the presence of a child under the age of fourteen. Smith argued that his conviction of a felony in Michigan should not automatically be equated to the commission of a felony offense in Florida because the acts which he committed in Michigan may not have been viewed in Florida at that time as "lewd, lascivious or indecent" as defined by Florida case law. Such definition is found in Boles v. State, 27 So.2d 293 (Fla. 1946), wherein the Court stated that the words lewd, lascivious and indecent are synonyms and connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator. And the Court in Buchanon v. State, 111 So.2d 51 (Fla. 1959), defined these terms as meaning an unlawful indulgence in lust, eager for sexual indulgence. Smith argues that in the area of sexual attitudes and mores universal agreement is impossible and that local community standards must be applied to determine the nature and quality of any given act. This argument is specifically rejected. While such an argument may have application to the expression of ideas, it is inapposite to Smith's conduct in Michigan which had the potential of causing severe emotional damage to another person. Smith's conduct was without doubt lewd, lascivious and indecent. In defense of the charge of fraud or deceit in the procuring of his license, Smith introduced into evidence what purports to be a rough draft of a supplement to his application in which the details of his Michigan conviction are set forth. Smith and members of his family testified to events which, if true, would establish that Smith had intended to include the supplement to his application and that it had been inadvertently lost. While it is not concluded as a matter of fact that Smith actually intended to file a supplement to his application, the evidence introduced by Smith is sufficient to raise doubt and to cause the Hearing Officer to conclude that evidence of Smith's fraudulent intent, when viewed in light of the evidence as a whole, is insufficient to establish fraud or deceit.
The Issue Is the Petitioner qualified for licensure?
Findings Of Fact On October 4, 1989, Petitioner filed his application for licensure as a real estate salesman. Question #7 of the application asked whether the applicant (Petitioner) had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld (Respondent's Composite Exhibit No. 1). The Petitioner admitted to having been arrested on July 3, 1984 and to pleading nolo contendere on October 17, 1985 to committing a sex offense against a child and the commission of lewd and lascivious acts. The Petitioner was placed on probation for ten (10) years for the first offense and was sentenced to three years imprisonment for the second offense with thirty-five (35) days credited for time served. A condition of his probation is that he cannot reside or stay overnight with a child under the age of 18. At the formal hearing in this case, Petitioner testified on his own behalf and admitted that he had molested his oldest daughter, age 11, and pleaded nolo contendere to said offense in 1984 and three (3) months later molested both his oldest daughter, then age 12, and his youngest daughter, then age 9, and pleaded guilty to said offenses. Petitioner further testified that the initial offense had been committed over a period of approximately two weeks and that the second offense had been committed over a period of approximately two months. The offenses occurred while he was undergoing rehabilitation therapy for the traumatic amputation of his leg. Since his release from jail, Petitioner has received treatment for his behavior at the Florida Mental Health Institute, North Florida Evaluation and Treatment Center and Community Behavioral Services. Petitioner's brother testified concerning his brother's life. The Petitioner had been an Eagle Scout; had been a scoutmaster; had been a member of the Navy Reserve and had had no problems prior to loosing his leg in an accident. Since his release from jail, the Petitioner has provided child support to his ex-wife and daughters. Petitioner had resided with and been employed by his brother until his brother adopted a child. The condition of the Petitioner's probation that the Petitioner can not reside with a child under the age of 18 required the Petitioner to change his residence and employment with his brother. He was employed by Kelly Temporary Services at the time of hearing and was working in a bank in customer service. The Petitioner has remained in therapy as required by his probation. The Petitioner has been in the presence of children when other adults were present since his release from jail and the Petitioner's behavior was exemplary. The Petitioner's brother opined that the Petitioner had "rehabilitated himself," and pointed out that very severe consequences would result to Petitioner for a third offense. The Petitioner admitted that the offenses had occurred in isolated settings when no other adults were present.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner's application to take the state examination for licensure as a real estate salesman be denied. DONE AND ENTERED this 2nd day of October, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1844 The Petitioner wrote a letter to the Hearing Officer, which was read and considered. Respondent's Proposed Findings of Fact 1-6. Adopted. 7. Rejected, as irrelevant. COPIES FURNISHED: Joselyn M. Price, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, FL 32801 Grady William Aplin, Jr. 905 South Kings Avenue Brandon, FL 33511 Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated April 17, 1990, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating the practice of nursing in the State of Florida. At all times material to this case, the Respondent has been a licensed practical nurse, having been issued license number PN 0914071. On October 27, 1988, the Board of Nursing (Board) issued a license to practice to Respondent and placed him on probation subject to specific terms and conditions for a period of two years. One of the conditions of Respondent's first year of probation required that he be directly supervised by a registered nurse when administering a narcotic. During the period July 15-16, 1989, Respondent worked two shifts in the oncology ward at Orlando Regional Medical Center (ORMC) in Orlando, Florida. During these shifts, Respondent administered approximately seventeen narcotic doses without being directly supervised by a registered nurse. The administration of narcotics described above were performed during Respondent's first year of probation. Policies in effect at ORMC during the period July 15-16, 1989, did not require that a licensed practical nurse be directly supervised when administering narcotics. Respondent's supervising head nurse at ORMC was unaware of the probationary condition requiring that Respondent be directly supervised during the administration of narcotics. A further condition of Respondent's probation required that he notify the Board's probation supervisor of any changes in his telephone number and/or employment within ten days of such change. On or about April 26, 1989, the Respondent notified the Board that he had been employed for Health Care of Orlando since approximately January, 1989, and for St. Cloud Hospital since approximately January 9, 1989. Such notification was not made within ten days of the change in employment. In July, 1989, the Respondent notified the Board of additional changes in employment and with his telephone number. This notification also was not made within ten days of the change. On or about May 11, 1989, the Respondent filled out an employment application with Allied Health Card Consultants, Inc. One of the questions posed on that application asked: "Have any of your professional licenses ever been under investigation?" Respondent answered the foregoing question: "no". Another question posed on the application asked: "Is there any reason you would be unable to perform the duties of your position?" In response, Respondent again answered: "no". On or about August 11, 1989, Respondent gave a copy of the final order setting forth his conditions of probation to Allied Health Care. At all times material to the allegations of this case it was the policy of ORMC not to hire any agency staffed nurse who was on probation status with the Board since all such staff are required to perform all duties without restrictions.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of having violated a term of his probation set forth in the prior final order enter by the Board, contrary to Section 464.018(1)(1), Florida Statutes, imposing an administrative fine in the amount of $500.00, and suspending the Respondent's license for a period of two years. DONE and ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991. APPENDIX CASE NO. 90-8047 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 and 2 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent's findings of fact begin with the paragraph numbered 9 Paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of the paragraph is rejected as contrary to the height of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as comment, argument, or irrelevant. COPIES FURNISHED: Tracey S. Hartman Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 C. Michael Magruder The Monument Building 22 W. Monument Avenue Kissimmee, Florida 34741 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202
The Issue The issue presented herein is whether or not Union Correctional Institution's Policy and Procedure Directive 3.04.11 is a rule not promulgated pursuant to Section 120.54, Florida Statutes, and therefore is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is an inmate at Union Correctional Institution at Raiford, Florida. Petitioner is a black male affected by pseudofolliculitis barbae or "PFB," a skin condition caused by ingrown facial hairs which manifests itself in lesions and irritation in affected areas. The best treatment for "PFB" is to refrain from shaving in the affected areas and allowing the facial hair to grow. Petitioner has allowed his facial hair to grow and does not at the present time shave. If an inmate chose, or for some reason was required to shave and irritation developed, medicinal preparations available at the institution's infirmary could be administered to alleviate the irritation. Further, should an infection or other serious medical problem develop as a result of the shave, arrangements would be made for such an inmate to see a dermatologist at the Lake Butler Institution's infirmary. Alcohol, although a drying agent, would further irritate the affected area. (Testimony of Dr. Julius Avilez, general practitioner employed at Union Correctional Institution's infirmary) On February 26, 1981, Respondent issued Policy and Procedure Directive 3.04.11, Inmate Package Permit. The directive indicated that items containing alcohol would not be accepted in packages received by inmates at all institutions and community facilities within the Department of Corrections. Subsequent to the issuance of the above directive, the Petitioner, on February 3, 1984, had several items confiscated from an approved package by Officer K. E. Scates, a Property Room Officer at the institution. Two plastic containers of splash-on aftershave cologne, trade name "Brut" with S and D alcohol content, were confiscated and are presently being held in the institution's Property Room as property of the State. The aftershave lotion was confiscated by the institution authorities pursuant to the above directive and the Petitioner was notified that the substance would be forfeited unless arrangements were made for return of the substance to either its source or Petitioner's family.
