The Issue The issue in this case is whether the Respondent's corrections officer license should be disciplined.
Findings Of Fact The Respondent was certified as a corrections officer by the Commission in Corrections on July 1, 1981. She was issued certificate number 61024. On February 22 and 23, 1996, Bart Knowles, Mark Islar, and Kelly Mims were law enforcement officers assigned to the Special Investigations Unit (SIU) under the Eighth Circuit State Attorney's Office. The SIU was a narcotics enforcement unit consisting of members of the six counties within the Eighth Circuit, under the supervision of the State Attorney. The SIU collectively enforced narcotics violations under state statutes. The SIU received a call from the Inspector General's office of the Department of Corrections. The SIU was asked to investigate allegations of an individual selling narcotics to an inmate. The allegations were that narcotics were being sold from a residence located at 240 Redwood Drive. The residence is located on the prison grounds of the Union Correctional Institution. The individuals residing at the residence were identified as Respondent and Robert Stoutamire, Respondent's boyfriend. On February 22, 1996, Agents Knowles, Islar, and Mims met with Inspector Hayes of the Department of Corrections Inspector General's Office. Inspector Hayes indicated to the agents that an inmate had admitted that when he was cleaning the grounds of the institution, he would go to the Respondent's residence for the purpose of purchasing cannabis from Mr. Stoutamire. The agents provided the inmate with a wire transmitting device, searched the individual, and allowed the inmate to approach the Respondent's residence, contact Mr. Stoutamire, and attempt to purchase cannabis. The inmate owed Mr. Stoutamire $80 from a previous purchase, so the agents gave the inmate $100 for the prior debt, plus $20 to purchase more cannabis. The inmate contacted Mr. Stoutamire at the residence, who stated that he would have the additional cannabis for the inmate on the following day. On February 23, 1996, Agents Knowles, Islar, and Mims re-initiated the investigation at Respondent's residence. The agents, along with Inspector Hayes, re-briefed the inmate about how they wanted him to proceed at the residence. The agents searched the inmate to ensure that he wasn't hiding any narcotics, placed an audio-transmitting device on his person, and then dropped him off near the Respondent's residence. The inmate was given a verbal signal to indicate to the agents that the transaction was complete. The inmate proceeded to the residence, and tapped on the window of the back door. Mr. Stoutamire met with the inmate at the rear of the residence and gave the inmate a small plastic baggy containing cannabis. When the inmate gave the verbal signal indicating that he had the narcotics in hand, the agents, who were positioned near the rear of the residence, approached the individuals. Agent Knowles ordered both the inmate and Mr. Stoutamire to lie on the ground. The agents retrieved a green leafy substance that appeared to be cannabis lying on the ground next to Mr. Stoutamire. One of the Inspectors from the Department of Corrections left to pick up the Respondent, who was in a class at the prison firing range. The agents wished to search for more evidence of narcotics in the residence and in Respondent's vehicle. When the Respondent arrived at the residence, Agent Islar explained to her that Mr. Stoutamire had been arrested, and that the agents had reason to believe that there were narcotics inside her residence and vehicle. Agent Islar requested the Respondent's consent to search her residence and her vehicle. Agent Islar presented the Respondent with a Consent to Search form, and fully explained the form to her. Respondent voluntarily consented to a search of her residence and vehicle. Respondent told the agents that her car was at the prison firing range. She gave them her car keys. Respondent testified that Mr. Stoutamire had dropped the car off at the firing range earlier that morning because he had had Respondent's vehicle for the last three days prior to this incident. She testified that Mr. Stoutamire and his friends had been driving her car around for the last three days, smoking marijuana in it and partying in it. Respondent also testified that she had not seen her car or purse during that three-day time. However, the evidence shows that Mr. Stoutamire was not driving around in her vehicle smoking cannabis, but was at home when the inmate went by her residence twice during that three-day time frame. Respondent’s testimony on this point is not credible. Agent Knowles proceeded to the firing range where he found the Respondent's vehicle. Inspector Hayes unlocked the vehicle with the Respondent's keys. Agent Knowles found the Respondent's purse in the vehicle. Agent Knowles verified that it was the Respondent's purse by locating her driver's license, other forms of identification of the Respondent, and papers with the Respondent's name on them in the purse. The purse contained a silky lining that was torn inside towards the top of the purse. At the hearing, Respondent acknowledged the purse in the car was her purse. Agent Knowles pulled back the lining, and discovered what he immediately identified as cannabis in the purse. Agent Knowles also discovered rolling papers in the compartment next to the cannabis. Agent Knowles has seen cannabis over two hundred times prior to this day. The substance found in the purse looked and smelled the same as the cannabis he had seen previously. Agent Knowles found several cannabis roaches located in the front passenger-side ashtray of the vehicle. Throughout the front floorboard of the vehicle, Agent Knowles discovered cannabis residue. Agent Knowles described the residue as very small leafy, green pieces of cannabis. Agent Knowles received 40 hours of training from the Institute for Police Training (IPTM) in narcotics investigation and identification, which included instruction in the use of the Valtox narcotics testing kit. Agent Knowles also attended an 80- hour course from the Drug Enforcement Agency, which also included instruction of the use of the Valtox narcotics testing kit. Agent Knowles has used the Valtox testing kit over 200 times, and has never had a positive test refuted by later chemical analysis. Agent Knowles field tested the cannabis found in the Respondent's purse, which tested positive. Inspector Hayes and Agent Knowles secured the vehicle, and returned to the residence. Agent Mims took part in the search of the Respondent's residence. The agents found several small baggies commonly used for narcotics. Some of the baggies contained residue of controlled substances, and some did not. The agents also found an ashtray containing residue of controlled substances in it. The baggies and ashtray were found in the bedroom that the Respondent and Mr. Stoutamire shared. The baggies and ashtray were found on top of and inside of a dresser in the bedroom. Baggies were found in at least two dresser drawers. One drawer contained female clothing. However, there were at least three dressers in Respondent's bedroom one of which contained here daughter's clothing. The evidence was not clear as to which dresser the cannabis was found in. The agents also found narcotics paraphernalia in the living room area, which included a plastic tube with suspected cocaine powder residue in it, and three plastic baggies containing narcotics residue in them. Respondent knew Mr. Stoutamire smoked marijuana. Respondent's claim of no knowledge of the presence of marijuana in her car and home is not credible since she knew of Mr. Stoutamire's continued use of marijuana and, as the evidence shows lived in the midst of his drug use in her home. Moreover, at all times Respondent was capable of removing the illegal drugs from her home and the prison grounds by preventing Mr. Stoutamire from living there. In short, Respondent knowingly permitted Mr. Stoutamire to introduce illegal drugs onto Union Correctional grounds, a serious offense and lack of the moral character required for correctional officers. Therefore, Respondent’s license should be disciplined. In Respondent’s favor she has been a corrections officer for seventeen years and has not been the subject of any license discipline during that time.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and that Respondent's certifications be revoked. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 October, 1998. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Harriett A. Cummings A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On February 6, 2015, Respondent published a notice of proposed rulemaking in the Florida Administrative Register. The notice set forth the text of six proposed rules to implement the Compassionate Medical Cannabis Act of 2014 (the Act), chapter 2014-157, Laws of Florida, codified as section 381.986, Florida Statutes.2/ The Petition is directed to only one of the proposed rules: proposed Florida Administrative Code Rule 64-4.002, entitled "Initial Application Requirements for Dispensing Organizations." As part of the challenge to proposed rule 64-4.002, the Petition also "questions" the composition of a negotiated rulemaking committee used by Respondent to develop the proposed rules and the adequacy of Respondent's Revised Statement of Regulatory Costs (Revised SERC). Facts related to Petitioner are contained in two paragraphs, which set forth both factual allegations and conclusions offered to support Petitioner's standing. In their entirety, the two paragraphs related to Petitioner provide: Petitioner is a 4[-]year[-]old child living in the State of Florida who has been diagnosed with an inoperable brain tumor who is currently using medical cannabis extracts to treat her condition. For purposes of this proceeding, Petitioner can be contacted through her undersigned counsel. Petitioner is eligible under the Act and plans to register with the Office of Compassionate Use Registry to become a "qualified patient" for the medical use of low THC cannabis and thus is "substantially affected" and has standing to challenge the proposed rule. Florida Statutes § 120.56(2)(a). Petition, ¶¶ 4, 5. The Petition does not contain factual allegations describing any injuries that Petitioner would suffer by application of the challenged proposed rule if it were adopted. The Petition contains some general allegations of harm without an adopted rule because of a "desperate need for access to low THC cannabis." The Petition alleges that the Act requires expedited promulgation of rules, which is imperative because the "selected applicants will be responsible for ensuring access to ordered medication, with greater risk of public injury if there is no access to medicine." (Petition, ¶ 14). In seeming contradiction, though, the Petition also alleges that "numerous corporations can now lawfully ship laboratory tested low-THC cannabis based food product and cosmetics to all 50 States without a prescription[.]" (Petition, ¶ 21, footnote omitted). Most favorably construed to Petitioner, these allegations suggest some general harm caused by the delay in getting a rule in place, but do not suggest harm that would be suffered by Petitioner ("who is currently using medical cannabis extracts") nor harm caused by application of the proposed rule. The Petition also includes allegations of harm to potential applicants eligible to become dispensing organizations caused by an "overly burdensome" application, scoring, and selection process in the proposed rule. Petitioner alleges that the burdensome process to select dispensing organizations has "no reasonable justification given the safety profile of low-THC cannabis as one of the safest substances known to man and the urgent need for this medicine for thousands of critically ill patients." (Petition, ¶ 16). The Petition complains about "an unauthorized arbitrary selection committee to choose among eligible applicants based on a complex and overly burdensome scoring system[,]" from which the Petition concludes: "Overall, the proposed rule fails to provide any objective methods to determine whether an eligible applicant is superior at growing low-THC cannabis or filling out a lengthy application." (Petition, ¶ 19). Finally, the Petition characterizes the proposed rule as an "attempt to eliminate applicants' rights to challenge the selection by comparative administrative review." (Petition, ¶ 21). But the Petition does not allege that Petitioner is an eligible applicant whose rights allegedly would be burdened or harmed in these ways. Finally, the Petition raises a general concern about the proposed rule's failure to consider or address the economic impact to patients of having to pay for purchases of low-THC cannabis from dispensing organizations. (Petition, ¶ 22). Here, too, the concern is expressed generally and is not attributed to Petitioner. Although not entirely clear, it appears that this allegation is intended as a criticism of the Revised SERC by suggesting a "cost" that should have been considered.
The Issue The Administrative Complaint in Case No. 90-7826 alleges violations of Chapter 464, Florida Statutes, governing the professional practice of nursing, when Respondent is alleged to have left a medication vial, syringe and needle in a place accessible to patients, in an alcohol and drug detoxification facility in Cocoa Beach, Florida. The Administrative Complaint in Case No. 91-7581 alleges that Respondent is unable to practice nursing with reasonable skill and safety to patients, by reason of illness, or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition, as provided in Section 464.018(1)(j), Florida Statutes. The issues initially submitted for disposition were whether those allegations are true, and if so, what discipline or action regarding Respondent's license should be taken. As discussed below, the parties have resolved the issues with a stipulation.
Findings Of Fact The following constitute the parties' stipulated findings of fact. Ms. Beecher is a licensed nurse in the State of Florida, holding license number RN 1238832 and, therefore, is subject to the jurisdiction of the Department and the Board of Nursing. Ms. Beecher was placed on probation for a period of one year as a result of disciplinary action filed in Department of Professional Regulation Case No. 90740. A term of the probation was that Ms. Beecher obtain and continue in counseling for the term of the probation, and thereafter until discharged. During the probationary period, Ms. Beecher received counseling from Marianne Jones, R.N., L.C.S.W., C.A.P. Ms. Beecher caused Ms. Jones to submit a probation report to the Board of Nursing in August 1990. Ms. Jones indicated that Ms. Beecher was not capable of safely engaging in the practice of nursing because of Ms. Beecher's mental illness and her lack of cooperation with her treatment program. Ms. Beecher appeared at the Board of Nursing meeting on October 12, 1990, at which time the Board members and staff were concerned about her erratic and irrational behavior. Ms. Beecher was examined in or around August and September, 1991 by Dr. Burton Podnos, M.D., a psychiatrist, who opined that Ms. Beecher was schizophrenic and, therefore, that she was not capable of safely engaging in the practice of nursing.
Recommendation Based on the foregoing, the parties have stipulated to the following recommended disposition: that a final order be entered suspending the nursing license of Linda Krasnay Beecher until such time as she is able to demonstrate that she is capable of safely engaging in the practice of nursing, and requiring that she enroll in the Intervention Program for Nurses (IPN) and complete their program for mentally impaired nurses. The final order should also reflect dismissal of the complaint in Case No. 90-7826. DONE and ENTERED this 4th day of March, 1992, in Tallahassee, Florida. MARY W. CLARK 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 4th day of March, 1992. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Lois Lepp, Esquire Department of Professional Regulation 1940 N Monroe Street Suite 60 Tallahassee, Florida 32399-0792 David Young, Esquire 1227 S. Florida Avenue Rockledge, Florida 32955
Findings Of Fact Hilda T. Clark, Respondent, is a registered nurse who holds license no. 21750-2. Evidence adduced during the course of the hearing reveals that during 1961, while Respondent was employed as a private duty nurse at Mount Sinai Hospital in Miami, she withdrew a narcotic drug, to wit: Dilaudid, for her patient, Mrs. Fanny Goldblum on approximately thirty occasions, which she administered to herself instead of the patient. Based on an Information for violation of the Florida Uniform Narcotic Drug Act (Chapter 398.19, F.S.) which was filed on March 15, 1961, the Respondent pled guilty and was placed on probation for a term of seven years on March 31, 1961. Thereafter, on January 12, 1977, the Respondent, while employed as a private duty registered nurse at the University of Miami Hospital and Clinic, converted to her own use a narcotic drug, to wit: Demerol. When confronted with this fact, the Respondent admitted to the Head Nurse, M. Francis, R.N., that she had injected herself with the Demerol and that she was addicted to narcotics for many years. The Respondent does not contest the above allegations and in fact admits that she engaged in the conduct that is alleged in the administrative complaint filed herein. However, she urges that the suspension of her license is unwarranted in these circumstances inasmuch as she was undergoing tremendous pressure based on her mother and spouse's poor health. Additionally, she related an incident wherein she was undergoing tremendous pain and was placed on the medication, Demerol for the relief of pain due to severe herpes zoster infection. Evidence and testimony introduced during the course of the hearing reveal that herpes zoster infection causes severe pain and that to control such pain, her physician, Edward E. Goldman, M.D., prescribed oral Tolwen, Demerol and Dilaudid suppositories. There also was evidence introduced during the course of the hearing which indicated that the Respondent is not now suffering from any drug related problems or addiction and that her professional abilities are beyond question. Respecting the most recent incident which occurred on January 12, 1977, evidence reveals that the Respondent was indeed laboring under a great deal of stress and mental pressures which, in her words, forced her to resort to the unlawful withdrawal and injection of the narcotic drug, Demerol. There was no evidence introduced that the Respondent engaged in any unlawful act during the period between the incident which occurred in 1961 and the January, 1977 incident. Nor was there any further evidence of any drug addiction problem by Respondent subsequent to the January, 1977 incident. The unlawful use of and procurement of drugs by nursing professionals is a serious act which should not be condoned without sanction by the Board of Nursing. It goes without saying that such acts and/or conduct constitutes a departure from the minimal standards of acceptable and prevailing nursing practice and in fact constitutes unprofessional conduct. See Chapter 464.21(b), Florida Statutes. Based on evidence received during the course of the hearing, there is substantial and competent evidence from which a finding can be made that the Respondent engaged in conduct violative of the above chapter i.e., Subsection 464.21(b), Florida Statutes. However, there was no evidence introduced on which a finding can be made that the Respondent is guilty of conduct violative of Chapter 464.21(c) and (d), as alleged. Although two instances of unlawful useage of narcotic drugs was alleged which the Respondent admits, in view of the length of time between the two occurrences, the undersigned concludes that the record fails to establish that the Respondent is habitually addicted to the use of controlled substances as provided in Chapter 464.21(c), Florida Statutes. I shall therefore recommend that the remaining two allegations be dismissed. Respecting the finding that the Respondent engaged in unprofessional conduct within the meaning of Chapter 464.21(b), Florida Statutes, I shall bear in mind and give consideration to the lengthy and creditable service that she has given to the nursing profession, a profession in which she desires to continue to practice. Based thereon and the favorable testimonials received into evidence, I shall recommend that the Respondent be placed on probation for a period of two years.
Recommendation Based on the foregoing findings of fact and conclusions of law I hereby recommend that the Respondent be placed on probation for a term of two years. In all other respects, I hereby recommend that the complaint allegations be dismissed. RECOMMENDED this 12th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 George A. Kokus, Esquire Cohen and Kokus 500 Roberts Building 28 West Flagler Street Miami, Florida 33130 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to the charges in this proceeding, respondent was employed as a registered nurse on the 11:00 P.M. to 7:30 A.M. shift aft the Putnam Community Hospital in Palatka, Florida. On or about October 28, 1978, the night supervisor at the Hospital, Ollie Craven, discovered an empty vial of Demerol (Meperidine) in the narcotic box, to which respondent had a key. Normally, the vial would be broken after use, but this vial was not broken. From this date until December 1, 1978, respondent was observed by the staff to exhibit symptoms of being under the influence of drugs. These symptoms included wide mood swings, lethargic behavior, minute-sized pupils and a very dry mouth, all consistent with one taking narcotics. When respondent came on duty on or about December 1, 1978, she appeared to be ill and did vomit. When observed later in the lounge, she was drowsy and lethargic. The night supervisor observed what appeared to be Demerol in her lab coat pocket. Feeling that respondent was not capable of carrying out her duties, Ms. Craven telephoned Ms. Wallace, the Director of Nurses, at about 3:00 A.M. and Ms. Wallace came to the Hospital. When questioned by Ms. Wallace, respondent denied having taken any drugs. Ms. Wallace palpitated the respondent's thighs and found the tissue to be hard and consistent with numerous injections. Respondent was asked to give a blood and a urine sample and did so. She was observed to have blood spots on her girdle. Ms. Wallace observed the respondent to be dull, with an extremely dry mouth and minute, pinpoint sized pupils. The blood and urine samples were positive for Meperidine, also known as Demerol, a controlled substance. By an Administrative Complaint dated December 3, 1978, the petitioner Board charged respondent with unprofessional conduct and a violation of F.S. Section 464.21(1)(b). On January 11, 1979, the respondent signed a form requesting an administrative hearing on the charges. In mid-February, the undersigned received a letter from the respondent reading as follows: Ms. Tremor: The hearing will have to be held without me. I am not now able to attend or will I be able in the next 60 to 90 days. Doctors orders. He states it will be to much tension because of the heart attack I have had. Sincerely yours Mary Pennington The attorney for the Board opposed a continuance without a letter from the respondent's physician. By notice of hearing dated May 3, 1979, the final hearing was noticed for June 4, 1979. The respondent Pennington did not appear at the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the respondent be found guilty of unprofessional conduct in violation of Section 464.21(1)(b), Florida Statutes, and that her registered nursing license be suspended for a period of six (6) months. Done and entered this 2nd day of July 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson Coordinator of Investigation and Licensing State Board of Nursing 111 East Coastline Drive Suite 504 Jacksonville, Florida 32202 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mary Wood Pennington Route 2, Box 1480 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Mary Wood Pennington As a Registered Nurse Case No. 78-764 Route 2, Box 1480 License Number 59864-2 Palatka, Florida 32077 /
Recommendation Based upon the forgoing facts presented in mitigation, the Hearing Officer would recommend that the State Board of Nursing revoke the license of Paul Bryce as a Licensed Practical Nurse with consideration of his reapplication upon the expiration of his probation in the absence of any adverse information obtained from Bryce's counselor. DONE and ORDERED this 30th day of October, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Paul J. Bryce 1010 North 25th Avenue Hollywood, Florida 33020 Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32201 Geraldine Johnson, R.N. State Board of Nursing 6501 Arlington Expressway - Bldg. B Jacksonville, Florida 32211
Findings Of Fact Dr. Lawrence A. Hall is licensed by the Florida State Board of Dentistry and the Hearing Officer has jurisdiction over the Respondent and the offenses alleged. During the time periods alleged Respondent smoked marijuana in the office after office hours in company with employees including a 16-year-old employee. During the time periods alleged Respondent wrote numerous prescriptions in the names of employees for controlled substances or drugs to be used for his personal use or for the use of his wife or friends. These drugs consisted of Eskatrol, Dexadrine, Dexamyl, Percodan, and Quaalude and were taken by Hall during office hours while he was performing work on dental patients. Some of these drugs made Respondent nervous and irritable and adversely affected his practice of dentistry. During the period between March, 1974 and July, 1975 Hall habitually used controlled substances add drugs. On many occasions he would be late getting to the office for morning appointments and late returning from lunch for afternoon appointments. Occasionally he would fail to come to the office at all and scheduled appointments would have to be cancelled - usually after the patient had appeared for the appointment. Hall wrote prescriptions for his wife and for his employees for controlled substances and drugs for uses not related to the practice of dentistry. These drugs consisted of amphetamines, Quaalude, and Percodan, and were often picked up from the pharmacy by one of his office employees not named in the prescription. Hall knew that his federal narcotics license did not authorize him to write prescriptions for drugs not intended for use in the practice of dentistry. Amphetamines are listed as Class II controlled substances in Chapter 893 F.S. On one occasion, while treating a small child, Hall became exasperated, threw a syringe across the room, then ran out of the office to jog around the adjacent shopping center for about 15 minutes to regain his composure. On another occasion a patient reacted adversely to an anesthetic and was thereafter properly treated by Hall to restore her breathing to normal. The dental procedure for which the anesthetic was given was then performed satisfactorily. The patient involved remained a patient of Hall until she moved to a location too far away to continue to use Hall as her dentist. She was satisfied with the dental treatment received from Hall. Hall sought help in his personal and drug related problems from his minister. No evidence was presented that Hall performed unsatisfactory dental work. To the contrary, all evidence presented in this regard was to the effect that Hall's dental work was above average. At the time of the hearing and for some months prior thereto Hall was not taking drugs.
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against in employment by Respondent in retaliation for Petitioner's efforts in behalf of minority employees of Respondent.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Priscilla M. Young, was a licensed practical nurse employed by Respondent, BAT Management Foundation, Inc. (BAT), at its Orlando Health Care Center (OHCC), as a floor nurse responsible for the care of approximately 60 residents during the 11 p.m. to 7 a.m. shift. Her immediate supervisor was Joan Renee’ Banton. Petitioner began working at OHCC as an LPN in 1992. In 1987 she had been convicted of a felony, aggravated battery, in circuit court and sentenced to imprisonment for a term of 30 months. After serving 8 of the 30 months, she was released without probation. At that time, she went to nursing school and was subsequently licensed in Florida as a practical nurse. At no time did she ever conceal her conviction from either the nursing school or licensing authorities. Petitioner was hired at Winter Park Memorial Hospital after graduating from nursing school and becoming licensed. At that facility she worked for both Joan Renee’ Banton and Sue O’Brien. During this period, Ms. O’Brien left Winter Park Memorial to take a position with BAT at its OHCC facility. Somewhat later, Petitioner saw an advertisement by BAT in the newspaper and applied for employment there. She claims Ms. O’Brien, who was at that time director of nursing was happy to see her when she arrived to fill out the application. Petitioner was interviewed for employment at OHCC by Ms. Stanley, who was the unit manager of the north wing at the facility. The employment application form contained a question which asked the applicant if she "had ever been convicted of a felony or, within the last five years of a misdemeanor, which resulted in imprisonment." Petitioner claims she was not sure how to interpret the verbiage and asked Ms. Stanley. Ms. Stanley also was not sure, so they discussed it with Ms. O’Brien. Based on their discussion, the determination was made that Petitioner did not have to list her felony conviction because it had occurred more than five years prior to the application. This was an incorrect decision because clearly the application requires listing a felony conviction regardless of when it happened, but requires listing of only those misdemeanor convictions which occurred within the last five years prior to application. Nonetheless, Petitioner was hired. During the course of her employment with OHCC, Petitioner had no disciplinary problems. Both Ms. Stanley and Ms. Banton deny having had any problems with her or her work. Petitioner contends that at least twice during the term of her employment, however, she complained to Ms. Banton about Banton’s use of the term, "you people" in reference to the aides and orderlies who worked for her, all of whom were minority of some nature: African American, Hispanic, or Asian. Ms. Banton cannot recall Petitioner’s having ever complained to her about that, and she denies having ever used that term. She claims that if she ever did refer to the employees as a group, it would have been phrased more as "you guys," or something like that. Considering the evidence of record, however, it is found that Ms. Banton probably did use the term "you people" and that Petitioner did complain about that usage to Ms. Banton. According to Ms. Banton, shortly after Petitioner was hired, all people who had knowledge of her conviction had left employment with OHCC. Ms. Stanley had taken employment elsewhere. Ms. Banton also left employment with OHCC in August 1994 because of rumors involving management problems with which she did not want to be involved. Somewhere between two and three weeks after leaving OHCC, however, Ms. Banton received a call from Mr. Allen, the owner of the company, asking her to come back to OHCC as Director of Nursing to replace Ms. O’Brien whom he intended to discharge. She agreed, and when she assumed her new role, she quickly received a phone call from Mr. Allen. In this telephone call, Mr. Allen asked if Petitioner was employed at OHCC. When Banton replied that she was, Allen reportedly revealed he had received a background check on Petitioner which indicated she had a felony conviction. According to Banton, Allen, who did not want any felons working in his nursing homes, directed Banton to check Petitioner’s background to see if the conviction had been noted on her application. She did, and when she reported to Allen that it had not been listed, he directed Banton by telephone to fire the Petitioner. Ms. Banton did what she had been directed to do. Petitioner contends that Banton’s attitude at the time of discharge was cavalier. Ms. Banton admits that at the time she had the discussion with Mr. Allen, she knew that Petitioner had served time in prison, but did not know why. She also claims that she did not know that Petitioner had discussed the conviction with Stanley and O’Brien and had been advised not to list it. Petitioner’s termination from employment with OHCC was based on her failure to disclose her felony conviction. Petitioner claims the termination was based on her speaking out for the other nursing assistants, all of whom were minority, when they were accused of incompetence. Ms. Banton, however, cites instances where when she would come in at night to check on how things were going, she would find pillows and chairs scattered around as if people were sleeping on their shift. She discussed this with Petitioner and admits the discussions were sometimes loud, but she never took any disciplinary action against Petitioner or wrote her up for this. Banton absolutely denies having ever disciplined any employee in public, always taking an employee to a private area to take corrective action. Petitioner is adamant in her contention that the fundamental basis for her discharge from employment with OHCC is retaliation for her standing up for the minority nursing assistants who were accused of incompetence. She firmly believes that her failure to list her felony conviction was seized upon as a pretext upon which to support the unlawful basis for her discharge. She cites that both Banton and O’Brien knew of her conviction and the fact that she had served time, when they all were employed at Winter Park Memorial, and that though it was not listed on her application for employment with OHCC, O’Brien knew about it at the time of her hiring, and Banton knew about it when she, Banton, subsequently came to work at OHCC. Coincidentally, Petitioner claims to have been instrumental in Banton’s obtaining employment at OHCC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order determining that Petitioner, Pricilla Young, was not subjected to racial discrimination or retaliation because of her advocacy on behalf of minority employees; that her discharge from employment with Respondent, BAT Management Foundation, Inc., d/b/a Orlando Health Care Center was based on a determination by Mr. Allen, the owner thereof, that her prior felony conviction disqualified her from employment at the facility; and that she is not entitled to back pay, expenses, or compensatory damages as a result thereof. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000 COPIES FURNISHED: Priscilla M. Young 312 Lime Avenue Orlando, Florida 32805 Jefferson M. Braswell, Esquire Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 23109 Gainesville, Florida 32602 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
