Findings Of Fact At all times material hereto, Miracle Hill was and is a skilled nursing home licensed by the Petitioner herein. During the three-week period prior to November 10, 1980, three of the full-time registered nurses employed by Miracle Hill resigned in order to commence employment with the State of Florida, since the State had substantially increased pay for nurses employed by the State. On October 29, 1980, Mary Jane Fears, the regular registered nurse on the morning shift at Miracle Hill, submitted her resignation effective November 15, 1980. Accordingly, on November 1, 1980, Miracle Hill began advertising in the Tallahassee Democrat its registered nurse vacancies. Although the ad appeared on ten consecutive days, no response was received to the advertisement. Nurse Fears was scheduled to work on November 10, 1980. On that morning, she called in to say she was ill and would not be coming to work. Bernardine Blackshear, the Director of Nursing at Miracle Hill, attempted to replace Nurse Fears but was unable to obtain the services of a substitute registered nurse. She did obtain a substitute licensed practical nurse for that morning shift. Nurse Blackshear maintains a list of substitute nurses for use in emergency situations. These persons were contacted in order to obtain sufficient staffing during November, but Miracle Hill was unable to locate enough substitute help to have a registered nurse on the morning shift each day. In addition to contacting all persons on the "substitute list" and advertising in the Tallahassee Democrat, the administrators at Miracle Hill also contacted Upjohn and Quality Care two nursing employment agencies, but the agencies were unable to obtain the services of anyone for Miracle Hill's morning shift. At the time, there was a severe nursing shortage in the Tallahassee area where Miracle Hill is located. Despite the efforts made to avoid the situation, Miracle Hill had no registered nurse on duty on its morning shift on November 10, 18, 22, and 23, 1980. There were on duty, however, several licensed practical nurses. Additionally, Nurse Blackshear was on call at her home located one-and-a-half miles from Miracle Hill; and the two licensed physicians employed by Miracle Hill were also accessible. As a result of an anonymous phone call, Petitioner sent one of its consultants, James L. Myrah, to Miracle Hill on November 25, 1980, to investigate the alleged nursing staff shortage. Upon speaking with Freddie L. Franklin, the licensed administrator of Miracle Hill, an upon reviewing Miracle Hill's records, Myrah determined that Miracle Hill had no registered nurse on duty at the facility on the four mornings in question. Additionally, Franklin told Myrah there might be a problem within the next few days since he had not been able to locate anyone willing to work Thanksgiving weekend. Subsequent to Myrah's visit to the facility, Miracle Hill hired Mary Jefferson, a registered nurse, to provide nursing coverage at the facility over the Thanksgiving weekend. Nurse Jefferson worked the morning shift on November 29, 1980, but called in on the morning of November 30 to say she would not work that day. Once again, Blackshear attempted to find a replacement registered nurse but was unable to do so. A licensed practical nurse was called in to replace the registered nurse. On December 1, 1980, Myrah revisited the facility to evaluate the registered nurse staffing over the Thanksgiving weekend. He, of course, discovered that no registered nurse was on duty during the morning shift on Sunday, November 30, 1980. At Miracle Hill, the morning shift normally is staffed by three nurses and six nurse's aides. On the afternoon shifts, only four aides are on duty with two nurses, including a registered nurse. Petitioner assessed a maximum fine of $500 per day against Miracle Hill for all five days on which no registered nurse was present at the facility during the morning shift, for a total administrative fine of $2,500. Dorothy Stratton, an employee in Petitioner's Jacksonville Office of Licensure & Certification, recommended to her superiors that the maximum fine be assessed since she considers it a serious deficiency for a nursing home to not have a registered nurse on duty in the morning. Although Stratton is aware that Miracle Hill is regarded by Petitioner as a model for nursing home operating procedures and usually obtains a perfect rating during inspections by the State, she has no knowledge regarding the circumstances causing Miracle Hill to violate the nursing requirements on the five days in question and has no interest in learning these circumstances. Stratton does not know who made the decision to assess the maximum fine allowable, and no testimony was presented by the Petitioner regarding who made that decision or regarding the circumstances considered in that decision. Petitioner has no written guidelines for determining whether a fine should be assessed or the severity of such a fine. During the three-and-a-half years that Freddie Franklin has been the administrator at Miracle Hill, there have been no other citations for nursing staff shortage, except those which are the subject of this Administrative Complaint. Additionally, there have been no major violations of any of Petitioner's requirements during Franklin's tenure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent in violation of staffing requirements by failing to have a registered nurse on duty on the A.M. shift on November 10, 18, 22, 23, and 30, 1980, and further finding that the assessment of a fine for that violation to be unwarranted under the circumstances of this cause only. RECOMMENDED this 18th day of December, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1981. COPIES FURNISHED: John L. Pearce, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Robert I. Scanlan, Esquire Post Office Box 10311 Tallahassee, Florida 32302 Henry C. Hunter, Esquire Suite 320 Lewis State Bank Building Tallahassee, Florida 32301 Mr. David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, CASE NO.: 81-991 vs. MIRACLE HILL NURSING AND CONVALESCENT HOME, INC., Respondent. /
The Issue Whether the Respondent's license as a Licensed Practical Nurse should be suspended or revoked for alleged violation of Sections 464.21(1)(b) and (d), F.S., as set forth in Administrative Complaint, dated August 3, 1978. The Respondent did not appear at the hearing. Notice of Hearing was issued by the Hearing Officer under date of October 25, 1978, to the address provided by Petitioner, 7124 Bay Drive No. 1, Miami Beach, Florida 33141. This is the address reflected on the envelope which enclosed Respondent's request for hearing on the Administrative Complaint sent to Petitioner under postmark August 28, 1978. It being determined that adequate notice had been provided to Respondent, the hearing was conducted as a uncontested proceed, pursuant to Rule 28-5.25(5), Florida Administrative Code. (Exhibit 5)
Findings Of Fact Respondent Michaela Fives holds License No. 27554-1 as a Licensed Practical Nurse and was so licensed in November, 1977. (Testimony of Johnson) On November 5, 1977, Detective Kenneth Valentine, Hialeah Police Department, was acting in an undercover capacity on an investigation of narcotics. Pursuant to his investigation, he met with Respondent at her apartment located at 5960 NW 38th Street, Apartment 210, Virginia Gardens, Miami, Florida. Lynn Sampson and Danny Cundiff were also present in Respondent's apartment at the time. Cundiff and Sampson wrote out a prescription of 60 300 mg. Quaalude tablets on a printed prescription form. The top of the form showed the name Lacy, Adler, M.D., P.A., followed by "Andrew P. Adler, M.D., Ray C. Lacy, M.D., 221 West Flagler Street, Miami, Florida 33130, Telephone: 887-9339." The prescription was handed to Valentine and Respondent gave him $15.50 to have it filled at the My Pharmacy, 1550 West 84th Street, Hialeah-Miami Lakes, Florida. By pre-arrangement with the pharmacist, Valentine had the prescription filled there and took the pills back to the apartment. Sampson divided them among Respondent, Cundiff and herself, and each of them ingested one tablet. Valentine purchased ten tablets from Sampson and Cundiff for $35.50. (Testimony of Valentine) On November 9, 1977, Valentine again met with the three individuals at Respondent's apartment and was provided another prescription for the same amount of drugs. It reflected the patient's name as Robert Southern, and registration number 178855. It was purportedly signed by "S. Adler, M.D." Prior to this meeting, the Hialeah police had determined that Doctors Adler and Lacy were not listed in the telephone book nor were they located at the address shown on the prescription form. They also determined that the phone number shown on the prescription form was a pay telephone located in Hialeah, Florida. After the individuals at the apartment discussed the fact that the pharmacist would probably call the phone number listed on the prescription form to verify its authenticity, Valentine took the Prescription to the My Pharmacy and had it filled, using his own money for the purchase. At this time, another police officer present at the pharmacy called the phone number listed on the prescription form to ostensibly verify the prescription. Lieutenant Paul Gentesse of the Hialeah Police Department had previously placed himself in a position to observe the pay telephone. He saw the Respondent answer the telephone and then followed her back to her apartment. When Valentine returned with the filled prescription, he gave it to Cundiff who divided the tablets among Respondent, Sampson and Valentine Valentine paid $30.00 for ten tablets. Other police officers then arrived at the apartment and Respondent, Cundiff and Sampson were placed under arrest. (Testimony of Valentine, Gentesse, Exhibit 3) The tablets taken from the possession of Respondent and the others were analyzed by a chemist in the Crime Laboratory of the Dade County Public Safety Department and were found to contain Methaqualone, a controlled substance under Chapter 893, Florida Statutes. Quaalude is a common tradename for Methaqualone. (Testimony of Lynn, Exhibit 2, supplemented by Exhibit 1) On January 9, 1975, Petitioner had suspended the license of the Respondent for period of two years as a result of prostitution charges. The record of that proceeding contained the testimony of Respondent that she had been involved In the illegal use of controlled drugs and had been attending a drug rehabilitation program for the treatment of drug abuse as a result of court order. Respondent thereafter petitioned for reconsideration of the suspension and, on June 29, 1976, Petitioner stayed its order of suspension and placed Respondent on probation for the remainder of the period of suspension. (Testimony of Johnson, Exhibit 4)
Recommendation That Respondent's license as a Licensed Practical Nurse be revoked for violation of Section 464.21(1)(d) , Florida Statutes. DONE and ENTERED this 2nd day day of January, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson, R.N. Investigation and Licensing Coordinator 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211 Michaela Fives, L.P.N. 7124 Bay Drive No. 1 Miami Beach, Florida 33141
The Issue Has Respondent been guilty of an unlawful employment practice as defined in Sections 760.01 - 760.10, F.S., i.e., discrimination by termination of Petitioner from employment on the basis of handicap?
Findings Of Fact The Petitioner is a white female, aged 53. She is a registered nurse (R.N.), licensed in Florida. In early 1981, the Petitioner sustained a severe back injury, a herniated disk. The Petitioner had a laminectomy in 1982. The Petitioner's back injury was aggravated in 1984. In May of 1985, the Petitioner had a second back surgery consisting of a laminectomy. Subsequent to this operation, the Petitioner continued to experience severe pain and physical limitations. In 1985, the Petitioner was awarded disability benefits by the Social Security Administration for a limited period of time. During 1986 and 1987, the Petitioner prepared herself, through education, for maternity and newborn care, areas of nursing that she considered less physically demanding than acute care, full charge floor nursing. Petitioner and her first surgeon had concluded that full charge floor nursing was too strenuous for her, considering her residual back condition and the likelihood of re-injury. Petitioner took 24 CEUs in obstetrics and new born nursing and took a course at St. Luke's Hospital in critical care/cardiac catheterization for which she received a certificate of completion. From 1983 until October 1988, the Petitioner held various positions at hospitals but was unable to fully perform her job duties due to her physical impairment. Immediately prior to her employment with Respondent, Petitioner had not been hired, or had left employment with other Jacksonville, Florida, hospitals because the employment they had available to her as a full charge nurse was not compatible with her physical limitations. On October 25, 1988, the Petitioner answered an advertisement for nurses placed by Respondent Humana Hospital in a local newspaper. At that time, the Petitioner was interviewed by Violet Bumpers, Assistant Director of Nursing. As part of the interview process, Petitioner provided certain materials and filled out various forms for Respondent. Mrs. Bumpers had access to these in the course of her interview. Petitioner's work history demonstrated that she had worked as a staff nurse for another facility immediately prior, and her work history indicated no limitations of her job responsibilities. Petitioner also failed to complete the employment application section which asked whether or not she would be unable to perform safely any of the duties of the position for which she applied. Petitioner completed the hospital's medical questionnaire without indicating any physical limitations, and in fact, failed to indicate that she had any restrictions from her prior surgeries. Her explanation for these omissions was that she left blank the boxes provided to fill in because she wanted Respondent's interviewer to ask her about her condition or about the blank boxes and wanted to explain her situation orally to the nurse recruiter. During the interview with Mrs. Bumpers, Petitioner stated that she had undergone two surgeries but did not disclose any residual disability as a result thereof. Mrs. Bumpers had had a single laminectomy herself, had continuously worked as a nurse in some capacity for many years, and neither Mrs. Bumpers' professional nor personal experience led her to conclude from Petitioner's explanation of her situation that Petitioner could not do the full job of floor nurse which Mrs. Bumpers and Petitioner both agreed was difficult and physically demanding. Although Petitioner related that she told Mrs. Bumpers that she had chronic back pain and had to be careful not to exacerbate her back, Petitioner also admitted that she did not volunteer more information because she had the necessary information if Respondent asked and because she anticipated a preemployment physical such as she had been given by previous interviewers. Petitioner put down "subsequent recovery" in reference to the second laminectomy based on recovery from the operation itself and not based on recovery from her various diseases or chronic back problems. Petitioner specifically did not list that she suffers from Padgett's Disease, arachnoiditis, or lost Achilles reflex. Before hiring Petitioner, Mrs. Bumpers took the precaution of asking her to provide documentation from her surgeon saying she could return to full duty. Petitioner provided Mrs. Bumpers with a medical release to that effect from a different doctor dated October 1, 1986, which release Petitioner had gotten at that time for purposes of applying for the light duty job of school nurse. Respondent only did a blood test and urinalysis and did not require a preemployment physical of Petitioner. At all times material, Petitioner was assigned to the "step down unit," a unit addressing the needs of patients in transition from critical care to regular floor care. Before being hired for that unit, Petitioner was given an opportunity to talk to Mary Ann Wilkinson, the unit's nurse supervisor, concerning the duties she would take on. Petitioner was hired by Respondent without any formal agreement for accommodation of her back condition by placing her in specialized nursing, but Petitioner still assumed from her conversation with Mrs. Bumpers that some accommodation would be made because Mrs. Bumpers said they would find a position in which Petitioner would be "comfortable." There is every reason to infer from the evidence as a whole that Mrs. Bumpers meant "professionally comfortable" and Respondent took that to mean "physically comfortable." Shortly after beginning work, Petitioner realized the "step down unit" was too strenuous for her. Often she was unable to get patients out of bed or walk them according to doctors' orders, so she complained to other employees, but not necessarily to supervisors. Because her complaints of too much work and too heavy work were reasonably susceptible of less charitable interpretations than that Petitioner was requesting accommodation of her back condition or modification of her duties compatible with her physical limitations, Petitioner suffered relationship problems with other nurses in her unit. On occasion, George, the charge nurse over her, would reassign patients at her request but sometimes he either would not or could not reassign patients. When she first approached her head nurse supervisor, Mary Ann Wilkinson, in December 1989, about both her physical and personal problems with staff, Mrs. Wilkinson was sympathetic and helpful. In March 1989, at Petitioner's request, Mrs. Bumpers met with her. As might be supposed, the testimony of Petitioner and Mrs. Bumpers is not in accord as to whether Petitioner merely inquired of Mrs. Bumpers concerning openings she had heard about in cardiac catheterization, maternity, newborn, and recovery room nursing, or whether she actually requested transfer to these units. It is certain, however, that Petitioner never filed a job transfer request in writing. Viewed in the light most favorable to the Petitioner, it is found that Petitioner specifically told Mrs. Bumpers at that meeting that the work was too hard for her and requested a transfer to the newborn nursery or the recovery room. However, Mrs. Bumpers denied the request because, contrary to Petitioner's assertion, these areas of nursing in Respondent's facility required the same level of strenuous activity and were equally physically demanding as was Petitioner's existing acute care nursing assignment in the "step down unit." It is also undisputed that Mrs. Bumpers gave Petitioner that reason for her refusal of transfer at that time. Petitioner did not demonstrate either that such an opening existed or that it was less strenuous. Mrs. Bumpers is credible in her testimony that she did not perceive Petitioner's request as a request to accommodate a handicap and that she turned down Petitioner's request for transfer for the foregoing non-pretextual reasons. Petitioner then requested to become a part-time employee, and Mrs. Bumpers granted that request immediately. In July 1989, Petitioner underwent a bladder sonogram and pelvic x-ray at Respondent's hospital. These procedures were part of her employee insurance package and were performed at her own doctor's request due to Petitioner's recurrent urinary tract infections. From a comment made to her by the technician who recognized that Petitioner also had "back problems," Petitioner inferred that thereafter her superiors knew that she had back problems, i.e., a handicap, and she imputed her subsequent personnel problems to those superiors' desire to get rid of her because she could not fully do her job, and/or due to her complaints, and/or due to her superiors having finally recognized the extent of her back limitations. There is, however, no evidentiary nexus to show that the knowledge of the technician, acting as a health care professional, was conveyed to Petitioner's supervisors or if such knowledge was conveyed to them, that it influenced their subsequent actions in any way. Approximately July 24, 1989, Petitioner left the hospital with keys that controlled the "narcotics locker." This was a clear violation of hospital policy. Upon her return with the keys after approximately 45 minutes, Petitioner volunteered no explanation for her absence. Although Petitioner's absence from the hospital with the narcotics keys was in clear violation of hospital policy, it was not a unique occurrence. Other nurses have inadvertently done the same thing. Petitioner's testimony at formal hearing that she used her "break" time to go to a nearby medical professional building for eyeglasses repair and had picked up "fast food" on the way back is credible. There is no evidence that she passed the narcotics keys to anyone or had them copied herself. On July 26, 1989, the Petitioner was informed that since she had left the hospital with the narcotics keys and did not promptly return, she would be required to give a urine specimen for drug screening. The Petitioner was also told that this was "hospital procedure." There is no written hospital procedure that specifically requires a drug screening when an individual leaves the hospital premises with the "narcotics keys," but Respondent regularly does such tests on employees when there is a change of behavior or any situation linked to narcotics. In this instance, Respondent's personnel sought advice from a contact at the Florida Department of Professional Regulation (DPR), who, due to the unexpected and "prolonged" length of Petitioner's absence, directed or suggested that a drug screening be conducted by Respondent. No authority of DPR to require such test without some predicatory procedure was demonstrated at formal hearing. The Petitioner was administered a drug screening test. That test proved "positive" for barbiturates and caffeine. Immediately after being informed of the "positive" test results, Petitioner denied use of any barbiturates, which denial she repeated at formal hearing. Immediately after being informed of the "positive" test results, the Petitioner also offered to submit herself to another drug screening. This offer was rejected by Respondent. Because of the "positive" drug test result, Respondent instead requested Petitioner to submit to an evaluation at the Koala Center to determine if Petitioner were professionally impaired. Respondent selected the Koala Center because, upon information from its DPR contact, the Koala Center was the evaluator used by the Florida Impaired Nursing Program. The evaluation that Respondent contemplated was two days of drug and psychological testing. Respondent told Petitioner and Petitioner correctly understood that the cost of the evaluation and her two days off with pay to undergo evaluation at the Koala Center would be paid for by the Respondent employer. The Petitioner initially assumed that she was going to be "retested" for drugs, and she testified at formal hearing that she welcomed the opportunity. However, upon investigation, the Petitioner learned that the Koala Center was also a drug treatment center. Based upon this fact, and what she believed would be a detrimental effect on her nursing career if she were "admitted" there, the Petitioner informed Respondent that she would not report to the Koala Center. When the Petitioner refused to go to the Koala Center, the Respondent informed her that the all-expense-paid evaluation offered was a "condition" of her future employment. The Petitioner still refused to attend and was accordingly constructively terminated from her position. No scientific evidence of the accuracy of the results of Respondent's drug screening test of Petitioner was introduced. Although the circumstances, chain of custody, and screening method of the original "positive" test present both constitutional questions and a strong potential for flawed factual results, it is found that the Respondent's request for further drug evaluation and the removal of Petitioner from patient care would have been requested by Respondent of any of its employees under the circumstances and were not based upon Petitioner's back condition but upon hospital policy and a concern for patient safety. After leaving her employment with the Respondent, the Petitioner has remained unemployed. If she had remained with the Respondent, the Petitioner would have earned a salary of $39,949.00 from August of 1989 through September of 1991. However, the Petitioner has received $11,742.00 from the Social Security Administration in the nature of disability payments during that period. She is currently receiving "full disability" from the Social Security Administration.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition and denying the relief sought. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of November 1991. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3620 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF 1-9, 11, 14-23, 26-27 Accepted except where unnecessary, subordinate, or cumulative to the facts as found. 12-13 Accepted as modified to correctly reflect the credible evidence. What is rejected is rejected as not supported by the credible record evidence as a whole. 10, 25 Rejected as not supported by the greater weight of the credible record evidence as a whole. 24 Rejected as immaterial based on the burden of proof as described in the conclusion of law. Respondent's PFOF 1-4, 7-10, 13-18 Accepted except where unnecessary, subordinate, or cumulative to the facts as found. 5-6, 11 Accepted as modified to correctly reflect the credible evidence as a whole and to show the correct chronology. 12 Rejected as subordinate and/or unnecessary but covered in FOF. COPIES FURNISHED: Claire Sharon Davis 10611 Turkey Scratch Lane Jacksonville, FL 32257 J. Gregory Carton as Qualified Representative Humana, Inc. 500 West Main Street Louisville, KY 40202 Ronald M. McElrath Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Courtesy copy to: Dale Westling, Esquire 220 East Forsyth Street Jacksonville, FL 32202
The Issue Whether Respondent violated Subsections 464.018(1)(c), (h), and (i), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Health, Board of Nursing (Department), is the agency charged with the regulation of the practice of nursing pursuant to Chapters 20, 456 and 464, Florida Statutes. Respondent, Marion Morris Morrow (Morrow), is a licensed practical nurse in the State of Florida, having been issued license number PN 0801791. Morrow met George Davison (Davison) when his wife was a patient at Green Briar Nursing Home, where Morrow was the charge nurse. In 1997, Davison was involved in an automobile accident, resulting in the loss of his driver's license. After Davison was no longer able to drive, Morrow took Davison to the grocery store to buy groceries. She also took him to the bank to cash checks. Morrow came to Davison's house on a regular basis to see him. If he was not feeling well, she checked on him, and if he needed anything she went and got it for him. Davison sold his automobile to Morrow for $2,500. She was to pay a little on the car as she had the money, but the total $2,500 has not been paid. At least two times after he sold the car to Morrow, he gave her money to pay the insurance on the car. He gave Morrow a few hundred dollars to pay her eldest son's college tuition. Davison gave Morrow money from time to time as she needed it. Morrow spent some of the money to support her cocaine habit. Davison was unaware that Morrow used any of the money to buy crack cocaine. On March 28, 1999, the Coral Gables Police Department received a 911 call from Davison, who was having delusions about people being in his house. Responding to the call, the police went to Davison's home. Morrow was at the home when the police arrived. On March 28, 1999, the Department of Children and Family Services' Adult Protective Services Unit received a complaint from the Coral Gables Police Department, alleging that possibly Davison, who was born in 1913, was being abused by his caregiver. Protective Services Investigator John Steinhilber was assigned the case and went to Davison's residence on March 29, 1999, to investigate. When Mr. Steinhilber arrived at Davison's home, he spoke with Morrow but was not admitted into the residence. On March 29, 1999, Davison was admitted to the South Miami Hospital. Morrow took Davison to the hospital at his request. Mr. Steinhilber contacted the Coral Gables Police Department for assistance in gaining admittance to Davison's home. On March 30, 1999, Mr. Steinhilber returned to Davison's residence with two police detectives, Kathleen Williams and Terry Drinkut. Morrow answered the door and let them in the house. Morrow had been on the telephone with Davison when the police arrived. She gave the telephone to Ms. Williams to talk to Davison, who gave the police permission to look around his home. Ms. Williams asked for Morrow's identification. Morrow proceeded to the back bedroom with the detectives following her. Morrow ran to the bed and grabbed something off of the bed. Thinking that Morrow may have a weapon, the detectives subdued her and found a crack pipe in one of her hands. There was debris on the bed, which appeared to be crack cocaine. Morrow was advised of her rights and taken to the police station. While the detectives were at Davison's residence, they inspected the interior of the house. There was rotting food on the kitchen counter, in the oven, and in the refrigerator, which was not working. One of the bathrooms had worms living in the toilet. There was feces in a lavatory, on Davison's bedroom floor, and in Davison's sheets. Dirty clothes with feces were piled in a corner of the bedroom. Empty medication bottles, dating back to 1998, were in the kitchen. There were piles of garbage throughout the house. Morrow was advised of her constitutional rights again at the police station. She told the police officers that she had begun taking care of Davison after he had an automobile accident in 1997, checking on him almost daily and occasionally staying overnight. She admitted that she was addicted to crack cocaine, and that since she had been a caregiver to Davison that she had received between $100,000 and $180,000 from Davison. She stated that she would go to the bank with Davison, who would negotiate checks made out to cash and turn the money over to Morrow. Additionally, she confessed that the majority of the money had been spent by Morrow for crack cocaine. From November 21, 1998, to February 18, 1999, Davison had written 62 checks for cash, totaling $16,114. At times more than one check would be cashed on the same day. Two of the checks for cash had been endorsed by Morrow. During the same time period, two checks were made payable to Morrow for a total of $323. Davison does not know what happened to the cash. He does not believe that he gave the cash to Morrow, but he has no explanation for where the cash went or what he bought with the money. Davison admits giving some money to Morrow over the course of their friendship, but he denies that he gave her between $100,000 and $180,000. On April 23, 1999, a two-count information was filed, alleging that Morrow abused an elderly person by neglecting to adequately provide care, supervision, and services for Davison and/or allowing the living conditions to deteriorate to a point which could reasonably result in physical or psychological injury and alleging that Morrow, while standing in a position of trust and confidence, knowingly obtained funds by deception or intimidation from Davison in an amount more than $20,000 but less than $100,000. On November 5, 1999, Morrow pled guilty to Count I of the information, alleging abuse of an elderly person by neglecting to provide adequate care. Count II of the information was nolle prossed. Adjudication was withheld, and Morrow was placed on probation for 12 months. Morrow attended a substance abuse program as a condition of her probation and was clean from the use of drugs or alcohol for fifteen months at the time of the final hearing. Morrow has not been employed since November 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Marion Morris Morrow did not violate Subsections 464.018(1)(h) and (i), Florida Statutes, finding that Marion Morris Morrow did violate Subsection 464.018(1)(c), Florida Statutes, imposing a fine of $500, and suspending her license for one year, to be followed by an appearance before the Board of Nursing to determine if she is safe to return to practice. If the Board of Nursing so determines, it may reinstate Marion Morris Morrow's license upon such conditions as it deems appropriate to protect the public health, safety, and welfare. DONE AND ENTERED this 5th day of October, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2000. COPIES FURNISHED: Diane K. Kiesling, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Room 3231A Tallahassee, Florida 32308 Marion Morris Morrow 27920 Southwest 130th Avenue Homestead, Florida 33032 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714
Findings Of Fact Having reviewed the entire record before it, the Board finds that the Findings of Fact as contained in the Hearing Officer's Recommended Order are adequately supported by competent, substantial evidence and hereby adopts those Findings of Fact as its own.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure by examination be GRANTED and that Ann Mary McKay be authorized to take the licensed practical nurse examination. DONE and ENTERED this 9th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1982.
The Issue Respondent is charged under Section 464.018(1)(c), Florida Statutes, of being convicted, regardless of adjudication, of a crime which directly relates to the practice of nursing or the ability to practice nursing, and under Section 464.018(1)(d) 5, of being found guilty, regardless of adjudication, of a violation of Chapter 784, Florida Statutes, relating to assault, battery, and culpable negligence.
Findings Of Fact The Respondent is, and at all times material hereto has been, a licensed registered nurse in the state of Florida, having been issued license number RN 1931082. She has been licensed in one or more states as a nurse for 25 years. She has been a critical care nurse and worked emergency rooms and ambulances. She has never before been the subject of Florida license discipline. On March 15, 1995, Respondent was charged with the crime of vehicular homicide, a second degree felony, pursuant to Section 782.071, Florida Statutes (1993). (See Exhibit R-5 showing the statutory year.) That statute provided in pertinent part, 782.071 Vehicular homicide. -- "Vehicular homicide" is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any person who commits vehicular homicide and willfully fails to stop or comply with the requirements of s. 316.027(1) is guilty of a felony of the second degree, punishable as provided in s. 774.082, s. 775.083, or s. 775.084 Respondent pled "not guilty" to the charge of vehicular homicide. On May 30, 1996, Respondent was tried and found guilty by a jury of vehicular homicide, in the Circuit Court in and for Manatee County, Florida under Case No. 94-3739F. A charge against Respondent of leaving the scene of the accident was dropped at trial. On June 27, 1996, Respondent was sentenced to six-and- one-half years of imprisonment followed by eight years of probation. The Second District Court of Appeal affirmed the Respondent's conviction, but her sentence was recalculated in connection with the applicable sentencing guidelines. There have been no other appellate decisions regarding Respondent's conviction. Respondent was due for work release shortly after formal hearing. The Respondent testified that she considered it her obligation as a nurse to stop and render assistance if she knew she hit someone with a motor vehicle; however, Respondent maintained that she did not know that she had hit anyone. The Agency presented no testimony, expert or otherwise, to relate Respondent's second degree felony conviction of vehicular homicide to the practice of nursing or the ability to practice nursing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health, Board of Nursing enter a Final Order finding Respondent not guilty of both counts of the Administrative Complaint and dismissing the Administrative Complaint. DONE AND ENTERED this 8th day of May, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 8th day of May, 1998.
The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2012.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the Florida State Board of Nursing give Madeline Gerardo a letter of official reprimand for her unprofessional conduct and place her on probation for a period of one year. For the other violation, the Hearing Officer would recommend an additional one year's probation to run concurrent with the probation assessed for unprofessional conduct. DONE and ORDERED this 11th day of June, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R. N. 111 East Coastline Drive Jacksonville, Florida 32202 Madeline S. Gerardo, L. P. N. Box 1124 Belleview, Florida 32620 STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Madeline S. Akoboff Gerardo Box 1124 Belleview, Florida 32620 CASE NO. 79-285 As a Licensed Practical Nurse License Number 29985-1 /
