Findings Of Fact By stipulation, the parties agreed that at all times pertinent to the allegations contained herein, the Respondent, AJL Enterprises, was licensed by the State of Florida to operate a cosmetology salon under license Number CE0020026, and under that license, operated the Rendezvous Beauty Salon at 5804 28th Avenue South, Gulfport, Florida 33707. Petitioner was and is the state agency charged with regulating the practice of cosmetology in Florida. On February 26, 1986, Marjorie May, an inspector for the Department of Professional Regulation, entered the Rendezvous Beauty Salon for the purpose of conducting a routine inspection of the premises. She found the shop to be generally in "pretty good condition". However, in the back room where supplies were kept, she saw two or three live roaches. She also noted that one of the operators on duty, Albert Brewer, was not using a wet sanitizer for the brushes and combs he used. At that time, other employees in the shop were. She also noted that there was no soap in the bathroom. All ot these deficiencies, identified under the pertinent rules of the Board, were, at that time, brought to the attention of Loretta Chaffin, the shop manager, but Ms. Chaffin does not recall the conversation. On February 24, 1987, Ms. May again inspected the salon and again, the condition of the shop was "generally good." However, clean towels, stored on a shelf, were not covered so as to protect them from dust as is required. She also noted that at least one of the operators, Edith Diamond, failed to have a current picture affixed to her license. On this visit, Ms. May noted no roach infestation. She brought the discrepancies identified to the attention of Barbara Shaw, a stylist, in the absence of the manager. Ms. May went back to the salon on August 18, 1987 for a follow-up inspection. On this occasion, she again saw one or two roaches in the back room and in general, the condition of the shop was not as good as it had been previously. She noted, for example, that the upholstery on the back of nearly half the nine styling chairs had split three or four inches and the foam stuffing was visible. Towels on an open rack were uncovered again, and wet sanitizers were not being used by any operator at any station. The only person present in the salon at the time was Michael Gaudette, a new employee, (stylist), and Ms. May briefed him as to the discrepancies. Mr. Gaudette could give no reason for not using a sanitizer indicating instead that the combs and brushes were sanitized in the rear of the shop by being immersed in a cleansing solution contained in a plastic tub. The use of a coverable plastic tub is acceptable, however, the cleansing solution must be a bactericide and fungicide such as Barbacide. Mr. Gaudette, according to Ms. May, indicated that he was using Seabreeze, an astringent. At the hearing, Mr. Gaudette denied this as did Ms. Chaffin, who indicated that the procedure followed was to thoroughly comb out all brushes to remove any loose hair, wash them thoroughly in soap and water, and then immerse them in a solution of Barbacide for 10 minutes. It is found that though a tub was being used, it had no cover and Mr. Gaudette's spontaneous statement about using Seabreeze is more credible than that of the manager, made in a disciplinary hearing, almost a year later. Ms. May also noted that Ms. Diamond's picture was still not current. However, each time she saw them, all licenses were current and appropriate. The only difficulty regarding the licenses was the failure by Ms. Diamond, and perhaps others, to have the required current picture. Ms. May went back to the Rendezvous Beauty Salon the day of the hearing and found that all discrepancies, with the exception of Ms. Diamond's picture, had been corrected. Evidence indicates as well, that an order had been entered on June 18, 1987, several months before the August inspection, to have the stylist chairs repaired and the delay was caused by the upholsterer. The salon is located in between a grocery store on one side and a delicatessen on the other. It is because of this that control of roaches on the premises is difficult. Efforts to control them, however, in place and operative, include monthly spraying by both Ms. Chaffin and monthly pest service by a professional exterminator. Though roach infestation may occur from time to time, it is not heavy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, AJL Enterprises, d/b/a Rendezvous Beauty Salon, be assessed an administrative fine of $250.00. RECOMMENDED this 30th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of August, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 88-3075 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein Accepted and incorporated herein FOR THE RESPONDENT None submitted COPIES FURNISHED: Ronald L. Jones, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-075O Ruth E. Lucido Secretary, AJL Enterprises 666 East Welch Causeway Madeira Beach, Florida 33708 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Duverglas is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the City was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Duverglas began his employment with the City in 1996 as a Park Ranger. An inference is drawn and a finding is made that Mr. Duverglas wore a uniform type of clothing for his position. In 2002, some employees complained, among other things, that the vehicles that Mr. Duverglas drove and in which he rode often were left reeking of urine. On December 17, 2002, a counseling session was held with Mr. Duverglas by his supervisor, Kelton Wayns, regarding, among other things, Mr. Duverglas’ personal hygiene and cleanliness of vehicles. In 2003, a complaint was received by Mr. Wyans regarding Mr. Duverglas urinating in a drain on the floor in a bathroom, instead of a urinal. Mr. Wyans investigated the complaint, and the investigative report was reviewed by the Park Ranger Supervisor and Foreman, Earnest Jones. Mr. Jones concluded that the allegation could not be substantiated, but he did counsel Mr. Duverglas that, as an employee of the City, he (Mr. Duverglas) must conduct himself professionally, at all times, and that any unsanitary behavior would not be tolerated. Performance evaluations of Mr. Duvergals were conducted. The categories for the rating of the evaluations were unsatisfactory, marginal, satisfactory, above satisfactory, and outstanding. At the review ending date of April 29, 2001, he received a satisfactory rating; and at the review ending dates of October 29, 2001, October 27, 2002, and October 27, 2003, he received an above satisfactory rating. In February 2004, due to workforce reductions, Mr. Duverglas was bumped and reassigned to the Grounds Maintenance Division as an Apprentice Maintenance Worker. In that position, Mr. Duverglas was assigned to a roving-crew of three to four workers who picked-up litter in a quadrant of the City. An inference is drawn and a finding is made that he wore a uniform type of clothing for his position. Also, around November 2004, Mr. Duverglas was hired as a part-time Park Ranger. Any problems, regarding Mr. Duverglas in this position, were directly dealt with by Mr. Jones. On December 9, 2004, Mr. Duverglas, as a maintenance worker, had a problem arriving at work timely. On December 15, 2004, he was given a letter of reprimand by his supervisor, John Neal, for arriving to work late and for failing to call-in regarding his tardiness. Additionally, the reprimand indicated that future occurrences could result in more severe disciplinary action up to and including dismissal. In January 2005, Mr. Neal, advised Mr. Duverglas that he was spending too much time on his (Mr. Duverglas’) cell phone. At that time, Mr. Duverglas informed Mr. Neal that a co- worker, L. C. Orr, had made offensive comments about Haitians. Mr. Neal had no knowledge of Mr. Orr’s alleged comments before being informed of them by Mr. Duverglas. Mr. Orr was aware of Mr. Duverglas’ Haitian ancestry. However, Mr. Neal was not until he was informed of Mr. Orr’s alleged comments. After that meeting and also in January 2005, Mr. Duvergals made a complaint with the City’s Office of Professional Standards (OPS) against Mr. Orr. Mr. Duverglas complained that Mr. Orr had made offensive comments about Haitians and that the offensive comments had contributed to a hostile work environment. After making the complaint with OPS, Mr. Duverglas was counseled by Mr. Neal regarding his (Mr. Duverglas’) poor work performance. At that time, Mr. Duverglas informed Mr. Neal that he had made a complaint against Mr. Orr with OPS. Mr. Neal had no knowledge of the OPS complaint before being informed of it by Mr. Duvergals. Mr. Duvergals also complained to OPS that Mr. Neal had retaliated against him when Mr. Neal met with him to counsel him about his performance deficiencies after his (Mr. Duverglas’) OPS complaint. Mr. Duverglas informed Mr. Neal, during the meeting, that he (Mr. Duverglas) had made a complaint to OPS against Mr. Orr regarding Mr. Orr’s derogatory comments about Haitians. Mr. Neal was not aware of Mr. Duverglas’ complaint against Mr. Orr until Mr. Duverglas informed him (Mr. Neal) of it. OPS investigated the complaint. OPS was unable to question Mr. Orr because he had retired from the City. Following an investigation, OPS determined that the allegations were unfounded and without merit. During his work as a maintenance worker and his part- time work as a Park Ranger, complaints regarding Mr. Duverglas’ personal hygiene occurred in both positions. Complaints were made regarding his clothing and body having the odor of urine and his trousers being wet in the front, and regarding the odor of urine being left in vehicles and lingering in the Park’s office. Mr. Duverglas was counseled on several occasions regarding these issues and notified that, if the problems continued, stronger action, than counseling, would be taken to address the problems. When Mr. Duverglas was a part-time Park Ranger, only one Park Ranger, Alan Brown, did not complain about Mr. Duverglas smelling of urine, wetting the front of his trousers, or leaving the smell of urine in vehicles. The evidence demonstrates that Mr. Jones, Mr. Duverglas’ supervisor as a Park Ranger, was aware of Mr. Duverglas’ Haitian ancestry. The evidence fails to demonstrate that any of Mr. Jones’ actions were taken because of Mr. Duverglas’ Haitian ancestry. In March 2005, Mr. Duverglas, as a maintenance worker, was sent by the City for a Fit-For-Duty evaluation, which was a medical evaluation to determine his fitness for duty. On March 22, 2005, a Fit-For-Duty evaluation was performed. The report by the examining physician indicates, among other things, that a prior evaluation was performed on March 11, 2005, and Mr. Duverglas was found fit for duty; that another evaluation was requested due to continued concerns regarding his “cleanliness” at work; that a concern existed as to whether he was suffering from incontinence; that he refused to allow the physician to perform an abdominal and genital exam; that his personal physician wrote a note to the examining physician that Mr. Duverglas did not suffer from incontinence and was fit to return to work with no restrictions; and that, based upon the representations by Mr. Duverglas’ personal physician, the examining physician had no choice but to find Mr. Duverglas fit for duty and clear him to return to work. Mr. Duverglas denied, and continues to deny, that he suffered or suffers from a medical condition, i.e., incontinence. The evidence is insufficient to demonstrate that Mr. Duverglas suffered or suffers from incontinence. The evidence demonstrates that Mr. Duverglas was fit- for-duty. In April 2005, Teresa “Terry” Reynard, Assistant Director of Parks and Recreation, who had the responsibility for park maintenance, transferred Mr. Duverglas, in his position as a maintenance worker, from one location to another location, Carter Park. Ms. Reynard’s intent was to accommodate what she perceived to be a problem with Mr. Duverglas’ personal hygiene by placing him in a park, Carter Park, in which several restrooms were available and accessible. However, the complaints continued at both of Mr. Duverglas’ jobs with the City. Mr. Duverglas’ supervisors counseled him on several occasions regarding his hygiene, the smell of urine, and trousers being wet in the front. At one point, Mr. Duverglas, as a maintenance worker, was notified that he should bring a change of clothing to work in an effort to eliminate the odor and smell of urine. Mr. Duverglas admits that he may have urinated on himself maybe once or twice but nothing extraordinary. Also, complaints were made regarding Mr. Duverglas’ excessive cell phone use, instead of working, inadequately performing his work, and unauthorized breaks. Mr. Duverglas admits that he was disciplined for excessive cell use. Mr. Duverglas admits that, on April 14, 2005, he was issued a reprimand for arriving at work late and that was his second violation in six months. Further, he admits that he was notified that the continuation of such conduct could be a basis for termination. On June 13, 2005, Mr. Duverglas was issued a letter of reprimand by Ms. Reynard for lack of productivity. Furthermore, the letter of reprimand notified Mr. Duverglas that his failure to be productive in his work could result in further disciplinary action including termination. On June 15, 2005, Mr. Duverglas was again issued a letter of reprimand by Ms. Reynard for lack of productivity. The letter of reprimand indicated, among other things, that Mr. Duverglas had violated the following General Employees’ Work Rules: Minor Rule 3 – Failure to observe department work schedules (starting time, quitting time, and meal periods). Minor Rule 6: - Unsatisfactory work performance, inefficiency. Minor Rule 7 – Loafing or other abuse of time during assigned working hours. Major Rule 6 – Leaving City premises during working hours without permission of supervisor. Further, the letter of reprimand notified Mr. Duverglas that, among other things, “future occurrences of the same or similar nature will result in more severe disciplinary action up to and including dismissal.” Mr. Duverglas refused to sign the letter of reprimand, but was provided a copy of it. On June 22, 2005, Ms. Reynard issued Mr. Duverglas an “Informational Letter” regarding his personal hygiene, i.e., urinating in his trousers. The Informational Letter provided, among other things, that, despite prior conversations and counseling, he (Mr. Duverglas) continued to have the personal hygiene problems; that his situation was a serious health risk; that, if he soiled his uniform in the future, he would be asked to change his uniform, and, if he failed to have a change of uniform with him at the time, he would be asked to leave work on his own time and not return until he had changed his uniform; and that, if his problem was caused by a medical condition and he wished to request an accommodation, he should do so. On June 24, 2005, Mr. Duverglas was issued a letter of counseling by Ms. Reynard regarding his (Mr. Duverglas’) personal hygiene. The letter of counseling provided, among other things, that Mr. Duverglas had been spoken to and counseled in the past months regarding his personal hygiene, but that the problem had persisted; and that Ms. Reynard had observed, the day before, that Mr. Duverglas’ trousers were wet. Further, the letter of counseling reminded Mr. Duverglas what he was directed to do if he wet his trousers. Moreover, the letter of counseling provided that future occurrences would result in disciplinary action, including dismissal. Mr. Duverglas contends that he was not protected from a threat of violence made by a co-worker Wilmar “Slim” Alexander. On June 29, 2005, Mr. Alexander threatened physical violence against Mr. Duverglas if Mr. Duverglas approached him (Mr. Alexander) in an aggressive manner. On July 5, 2005, Ms. Reynard issued a letter of reprimand against Mr. Alexander for “an inappropriate remark to a coworker.” Further, the letter of reprimand provided, among other things, that the behavior exemplified by Mr. Alexander would not be tolerated and that future occurrences would result in severe disciplinary action including dismissal. The evidence failed to demonstrate that Mr. Alexander exhibited any further violent behavior towards Mr. Duverglas. The evidence failed to demonstrate that the letter of reprimand was not the appropriate punishment for Mr. Alexander’s behavior. The evidence is insufficient to demonstrate that Mr. Alexander exhibited any violent behavior towards Mr. Duvergals prior to Mr. Alexander’s threat. The evidence failed to demonstrate that the City failed to protect Mr. Duverglas from the threat made by Mr. Alexander. On June 30, 2005, Mr. Duverglas was placed on administrative leave with pay pending the City’s investigation that he “may have violated City rules and regulations.” On July 27, 2005, after notice, an informational meeting was held with Mr. Duverglas. Based on the informational meeting, on July 28, 2005, Ms. Reynard issued a written recommendation to Phil Thornburg, Director of the City, regarding Mr. Duverglas. The recommendation provided, among other things, that the persons in attendance at the informational meeting included Ms. Reynard, Mr. Duverglas, and a union representative; that the meeting was held to address several issues including Mr. Duverglas’ personal hygiene, complaints regarding the smell of urine, his performance deficiencies and general loafing, and the report of his urinating in public; and that Mr. Duverglas denied all allegations. Further, the recommendation determined that Mr. Duverglas’ denials, explanations and responses were “incredible and unworthy of belief” and that he had engaged in severe conduct. Ms. Reynard recommended the termination of Mr. Duverglas. Around May 2005, a self-employed painter, Samuel Mitchell, was performing contract work at Carter Park. Mr. Mitchell observed whom he recognized as Mr. Duverglas leaning against a concrete pole with his (Mr. Duverglas’) trousers around his (Mr. Duverglas’) knees, appearing to be urinating, but Mr. Mitchell did not observe a stream of liquid. The area in which Mr. Duverglas was observed was near a residential area, was an area that the general public frequents, and was an area used by school children. Mr. Mitchell perceived the conduct to be inappropriate. Mr. Mitchell spoke with Mr. Duverglas, and Mr. Duverglas vehemently denied that he was the person whom Mr. Mitchell observed. Mr. Mitchell did not wish to report what he observed to the City, but wanted Mr. Duverglas to change the behavior that he (Mr. Mitchell) observed; however, because of the way Mr. Duverglas reacted to his (Mr. Mitchell’s) talking with him (Mr. Duverglas), Mr. Mitchell reported the incident to the City. Mr. Mitchell testified at hearing, and his testimony is found to be credible. Mr. Duverglas denied that he was the person observed by Mr. Mitchell. Mr. Mitchell’s testimony is found to be more credible than Mr. Duverglas’ testimony. Also, at the time of the incident, another person, who was a non-employee of the City, reported the same observation to the City. That person did not testify at hearing. A finding is made that Mr. Duverglas was the person observed by Mr. Mitchell and was the person engaged in the conduct observed by Mr. Mitchell. Further, even though Mr. Mitchell did not observe a stream of liquid, an inference is drawn and a finding is made that, based upon the prior conduct, actions, and behavior of Mr. Duverglas, regarding his personal hygiene and the wetting of the front of his trousers, Mr. Duverglas was urinating. Moreover, a finding is made that the City was reasonable in making a determination that Mr. Duverglas was urinating. The evidence demonstrated that Ms. Reynard was aware of Mr. Duverglas’ Haitian descent. However, the evidence failed to demonstrate that any of her actions were motivated by Mr. Duverglas’ Haitian descent. Mr. Thornburg had the final authority in disciplinary matters regarding the Parks and Recreation Department. By letter dated August 5, 2005, Mr. Thornburg notified Mr. Duverglas that he (Mr. Duverglas) was being suspended, without pay, for 20 days, effectively immediately, and was being dismissed from the City as an Apprentice Maintenance Worker, effective September 2, 2005. The letter was hand-delivered to Mr. Duverglas. The letter provided, among other things, that the action was being taken for continued deficiencies in performance and conduct, setting forth the deficiencies, which were: Despite prior counseling, a transfer to another facility with better access to bathroom facilities and other accommodations, you continued to disregard your personal hygiene and appearance as a representative of the City by urinating in your trousers in public and disregard of proper safety practices and precautions. Your failure to conform your behavior to civilized standards has been the subject of complaints by your co-workers over having to work in offensive, unsanitary and unhealthy conditions and cannot be tolerated. You continued to demonstrate deficiencies in performance of assigned duties by taking unauthorized breaks, excessive use of your personal cell phone in the field during working hours and general loafing. Employees of two City contractors have witnessed you urinating in a public place although restroom facilities were available. City Ordinance 16-75(a)(5) – Public Indecency. Additionally, the letter set forth General Employees’ Work Rules that Mr. Duverglas violated, which were: Major Rule 1 – Any act which might endanger the safety or lives of other [sic]. Major Rule 2 – Refusal to perform work properly assigned by a supervisor. Major Rule 3 – Willful, deliberate or repeated violation of City safety rules, including instances where there is evidence of willful disregard of proper safety practices and precautions while operating City equipment. Major Rule 7 – Deliberately abusing [sic] destroying, damaging or defacing City property, tools, equipment or the property of others on City premises. Major Rule 21 – Neglect of duty. Major Rule 24 – Conduct, either while on or off duty, which tends to reflect discredit upon the City. Major Rule 25 – Employee harassment, abusive conduct towards an employee or a member of the general public. Major Rule 26 – Violation of City Charter, ordinances, or administrative rules and regulations, specifically City Ordinance 16- 75(a)(5) – Public Indecency. Furthermore, the letter provided that Mr. Duverglas had the opportunity to request a hearing, setting forth the procedure for such a request, and indicated the consequences for his failure to request a hearing. City Ordinance 16-75(a)(5) – Public Indecency provides in pertinent part: Offense. It shall be unlawful for any person to commit public indecency. A person commits public indecency when he performs any of the following acts in a public place: * * * (5) Urinates . . . in other than a toilet or washroom . . . . Definitions. “Public place,” for purposes of this section, means any place where the conduct may reasonably be expected to be viewed by others. Penalties. Any person convicted of violating this section shall be deemed guilty of the offense of public decency and upon conviction shall be punished as provided in section 1-6 of this Code. Section 1-6, titled “Penalty for violations,” provides in pertinent part: In this section “violation of this Code” means: Doing an act that is prohibited or made or declared unlawful or an offense by ordinance or by rule or regulation authorized by ordinance . . . . * * * Except as otherwise provided herein, a person convicted of a violation of this Code, shall be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment for a term not to exceed sixty (60) days or by both such fine and imprisonment. . . . The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise or the imposition of civil fines, civil penalties or administrative sanctions. Administrative sanctions could be imposed for a violation of City Ordinance Section 16-75(5). Mr. Duverglas admits that a violation of City Ordinance Section 16-75(5) is just cause for suspension and dismissal. The ground of public indecency was sufficient, in and of itself, to dismiss Mr. Duverglas from employment. The evidence demonstrated that he committed the act of public indecency as defined in City Ordinance Section 16-75(5). The evidence fails to demonstrate that Mr. Thornburg had any knowledge of Mr. Duverglas’ Haitian ancestry prior to the disciplinary action. Mr. Duverglas requested a hearing from the City. The hearing was held on September 6, 2005. By letter dated September 7, 2005, the City Manager, George Gretsas, notified Mr. Duverglas that, after a review of all the available and relevant information, including that presented at the hearing, the suspension and dismissal was upheld. A grievance under the union contract was filed. On November 21, 2005, the City’s Employee Relations Director issued a “Fourth Step Response Teamster Grievance,” providing, among other things, that a hearing was held on November 9, 2005, in accordance with the grievance, that no evidence was presented to cause the City to modify its decision, and that, therefore, the grievance was denied. An inference is drawn and a finding is made that an arbitration hearing was held on or about May 18, 2006, regarding Mr. Duverglas’ suspension and dismissal. The evidence was insufficient to demonstrate the outcome of the arbitration proceedings, but an inference is drawn and a finding is made that the arbitration decision was not favorable to Mr. Duverglas. On July 24, 2006, Mr. Duverglas filed a Charge of Discrimination with the Broward County Civil Rights Division and the EEOC against the City alleging that the City discriminated against him on the basis of national origin (Haitian) and retaliation in violation of the Florida Civil Rights Act of 1992, as amended. The Broward County Civil Rights Division waived investigation of the charge. The matter was investigated by the FCHR. On January 19, 2007, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause. Mr. Duverglas timely filed a Petition for Relief with the FCHR against the City.
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 dismissing the discrimination complaint of Donald Duverglas against the City of Fort Lauderdale. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 25th day of November, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Raymond F. Cay was licensed as a barber in the state of Florida and licensed to operate a barbershop in the state of Florida, holding license numbers BB00014055 and B50007436, respectively. At all times material to this proceeding, Respondent was owner of the barbershop, Cay's Hairstylist (Cay's), located at 1349 Cassat Avenue, Jacksonville, Florida 32205. On April 14, 1987, Petitioner conducted a routine annual inspection of Cay's as required by rule and noted certain deficiencies which if proven could have resulted in Respondent's licenses being revoked, suspended or otherwise disciplined. However, there was insufficient evidence to show that these allegations of deficiencies were ever proven in a formal proceeding or admitted to by Respondent in an informal proceeding under Chapter 120, Florida Statutes. In fact, there was insufficient evidence to show that any disposition had been made by the Petitioner on these alleged deficiencies. On March 11, 1988, Petitioner again conducted a routine annual inspection of Cay's and again noted certain deficiencies which were the basis of the Second Amended Complaint. There was insufficient evidence to show that there was excessive hair on floor or that the back of the bars, chairs or furniture were not maintained in a safe and sanitary manner or that the shop and equipment were dirty on March 11, 1988 when the inspector visited Cay's. Although all of the barbering tools were not totally immersed in a disinfectant solution on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that that portion of the barbering tool (including brushes) which comes in contact with the patrons, was not sufficiently immersed in a proper disinfectant solution to allow proper sanitation. Although there were no sanitary towels in the bathroom on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that the bathroom was dirty. Sanitation rules were improperly displayed in Cay's on March 11, 1988 when the inspector visited. The only license not displayed on March 11, 1988 when the inspector visited Cay's was Ms. Delp's, and she was currently on leave and not working even though she was in the shop shampooing her hair on that day. On November 22, 1988, Petitioner conducted a re-inspection of Cay's and the inspector noted certain deficiencies which if proven could result in Respondent's licenses being revoked, suspended or otherwise disciplined. However, these alleged deficiencies were neither made a part of the Second Amended Administrative Complaint nor was there any evidence that these alleged deficiencies were ever proven or that they formed the basis for any disciplinary action taken by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order DISMISSING the Second Amended Administrative Complaint filed herein. RESPECTFULLY submitted and entered this 24th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4180 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by Petitioner in this case. Respondent did not submit any Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Treated as a conclusion of law rather than a finding of fact. 2.-3. Adopted in Finding of Fact 1. 4. Adopted in Finding of Fact 2. 5.-6. Subordinate to facts actually found in this Recommended Order. 7. Treated as a conclusion of law rather than a finding of fact. 8.-0. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 4. Subordinate to facts actually found in this Recommended Order. COPIES FURNISHED: Myrtle Aase, Executive Director Barber's Board 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 E. Renee Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 P. W. Cay, Qualified Representative 1349 Cassat Avenue Jacksonville, Florida 32205 Raymond F. Cay 1349 Cassat Avenue Jacksonville, Florida 32205
The Issue The issue for consideration in this case is whether Respondent should be disciplined, to include a three day suspension without pay, because of the misconduct alleged in the Notification of Suspension issued herein.
Findings Of Fact At all times pertinent to the issues herein, Respondent, William T. Mooney, worked as a laboratory technician for the City of Clearwater's Public Works/Water Pollution Control Division. On April 15, 1993, Doreen Spano, the City's utility lab supervisor, held a meeting of her division personnel at which she identified Iracema Drysdale as the lead worker and, in order to clarify any misconceptions among lab workers as to work deadlines, presented a policy letter for the lab, entitled "New Work Schedule". The schedule set guidelines and deadlines for the daily workload. The memorandum contains inconsistent statements, however. For example, while Ms. Spano indicated both in the memo and at hearing that the instructions therein are merely guidelines, she also used such imperatives as "must" and "will" in the memo. Specifically, the memorandum indicates the daily plant BOD must be in the incubator by 12:00 PM, and the daily plant bacteria must be in the incubator by 12:30 PM. Respondent has worked in this City laboratory for approximately 14 years. During this time he has developed a method of accomplishing his tasks which is described by Ms. Drysdale as less than efficient. She indicates he frequently misses his time deadlines and works at his own pace. Respondent, on the other hand, claims he has always completed his tasks according to the Standard Methods Manual, but, due to the time the samples are received in the lab, could not accomplish both the BOD and the bacteria procedures within the guidelines set in that manual and the Environmental Protection Agency standards manual. Either one or both would be late. This controversy, much of which was made by both sides, is, in reality, only peripherally related to the issue in controversy here which is whether Respondent was insubordinate or not on September 9, 1993. Both Ms. Drysdale and the Respondent signed the memorandum in question here indicating their receipt and understanding of the directions contained therein. Thereafter, on September 9, 1993, Ms. Drysdale entered the lab shortly before the lunch period to find the bacteria procedure not done and Respondent working on the BOD procedure. It appears that the bacteria sample was taken at 6:00 AM on this day and, under EPA guidelines, had to be preserved in the incubator within six hours or the results of the procedure would be invalid and not eligible for reporting to the EPA. When Ms. Drysdale asked Respondent why he was doing the BOD when the bacteria procedure had not been accomplished, he indicated that Ms. Spano's memorandum required the BOD to be done by 12:00 noon and the bacteria not until 12:30 PM. He considered this a directive and indicated he would complete his work consistent therewith. Again, there is a contradiction in the testimony as to the nature of the conversation between Ms. Drysdale and the Respondent. Ms. Drysdale asserts that about noon on the day in question, she suggested to Respondent that he start the bacteria procedure first and then do the BOD procedure. Respondent refused because he believed he had to follow the new work schedule prepared by Ms. Spano. Ms. Drysdale then told him to do the bacteria procedure first and she would assume the responsibility. Respondent still refused and, raising his voice to her, completed the BOD procedure. When he finished that, he did the bacteria procedure but by that time, the sample was too old and had to be discarded. Respondent's recounting of the incident is somewhat different. He claims he was approached by Ms. Drysdale who asked him why he did the bacteria procedure after the BOD procedure. When he pointed out the dictates of the memorandum, she claimed to know nothing about it even though her signature, along with that of Respondent and Mr. Olson, appears on the bottom thereof. Nonetheless, according to Respondent, Ms. Drysdale said she would check on it. After lunch, according to Respondent, Ms. Drysdale came back with the Standard Methods book. When he showed her the new work rules, he claims, she admitted she was aware that Ms. Spano had written them. When he asked her what Ms. Spano had said about the situation, she allegedly replied, "Why don't you do it the way I say and if Doreen (Ms. Spano) asks, I'll take the responsibility." Respondent was upset because, he contends, things like this always happen. Respondent, in subsequent testimony, denied ever getting a direct order from Ms. Drysdale or that she indicated she would assume responsibility. On balance, while there is little doubt in Ms. Drysdale's testimony as to what happened, Respondent tells two different stories regarding the conversation. At one point he claims she asked him why he didn't do it her way and that if he did, she'd assume responsibility. At another, he claims she merely asked why he was doing the procedures as he was and made no mention of assuming responsibility. It is clear that Ms. Drysdale wanted the bacteria procedure done first, and while she might not have couched her request in directory language, there can be little doubt she communicated her desires to Respondent, albeit in a perhaps more gentle manner. In any case, she was Respondent's supervisor and he knew it. She wanted the work done as she indicated and her request, made under the authority she had to get the work done as she desired, had the force and effect of a direct order which Respondent disobeyed at his peril. Ms. Spano indicated she discussed not only the appointment of Ms. Drysdale as lead worker at the April 15, 1993 meeting, but also the six hour requirement for specimens. Respondent denies this, but it is found he knew exactly what the requirements were. He claims he has been doing things the way the memorandum calls for ever since it was promulgated and this is not inconsistent with his current position on doing the BOD procedure first. When this incident took place, Mr. Reckenwald, the superintendent of the water and pollution control division, and the overall supervisor of the laboratory operation in question, received a recommendation for discipline, primarily because of Respondent's failure to follow orders. In addition, however, the incident created a problem for the City which has to report to the EPA and other federal agencies. Because of this report requirement, it is imperative the work be done properly. If it is not done properly, the work is worthless and may result in sanction action against the city by federal regulatory agencies. Not the least of concerns, also, is the public health consideration since effluent, the source of samples for both BOD and bacteria procedures, is discharged into the public waterways. On the basis of the above, a recommendations was made that Respondent receive a three day suspension. This is consistent with disciplinary guidelines contained in the City's Guidelines For Disciplinary Action. Respondent appealed the action to the City Manager who reviewed his submittal but nonetheless upheld the disciplinary action proposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the City of Clearwater take final action in this matter to consist of suspension of the Respondent without pay for three days and imposition of 40 disciplinary action points. RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of May, 1994. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P.O. Box 4748 Clearwater, Florida 34618 William T. Mooney 1433 Laura Street Clearwater, Florida 34615 Michael J. Wright City Manager City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Donald H. Kirkby, is and has been at all times material hereto, a licensed barber in the State of Florida, having been issued License No. BB0018162 on September 16, 1965. The Respondent is and has been at all times material hereto, licensed to operate a barber shop in the State of Florida, having been issued License No. BS0006701. The Respondent owns and operates a barber shop which operates under the trade name, Mr. K's Groom Room, located at 88 East Blue Heron Boulevard, Riviera Beach, Florida. On April 27, 1984, Jean Robinson, an inspector for DPR, visited Mr. K's Groom Room for the purpose of performing an inspection. During the inspection, Ms. Robinson noted several conditions which she believed to be sanitation violations. Because there had been an organizational change in the manner in which barber shops were inspected, and because barber shops went uninspected for a period of approximately three years, Ms. Robinson chose not to note the violations on a departmental inspection form but explained the Barber Board sanitation rules and requirements to the Respondent, left Respondent a copy of the sanitation rules and instructed Respondent to post the rules. On April 17, 1985, Ms. Robinson once again visited Mr. K's Groom Room for the purpose of performing an inspection. During the inspection, Ms. Robinson noticed several deficiencies and violations. At the conclusion of her inspection, Ms. Robinson completed an "inspection form" wherein she specified the deficiencies and violations which she noticed. Ms. Robinson indicated that on the form that implements were being used from one patron to another without hair being removed, improper implement sanitation procedures were used and current rules of sanitation were not properly posted for the public. Both Ms. Robinson and the Respondent signed the inspection form. On February 18, 1986, Ms. Robinson returned to Mr. K's Groom Room to conduct a reinspection. While there, Ms. Robinson noticed that proper implement sanitation procedures were not being used. In particular, Ms. Robinson observed Paul Poma, one of Respondent's barber employees, use hair cutting implements on a customer that he had used on a previous customer without cleaning or sanitizing them in any way. Although Mr. Poma had an ultraviolet ray sanitizing device at his station, it was not being used. When Ms. Robinson inspected the sterilizer by flicking the on/off switch, the machine did not come on, even though the electrical plug was properly placed in the wall socket. Ms. Robinson further observed the Respondent use hair cutting implements on a new customer that he had used on a previous customer without sanitizing or cleaning the implements. During the inspection, Ms. Robinson looked around for the licenses, but could not find them. When Ms. Robinson asked Respondent where the licenses were, he pointed to a table in the corner of the shop. Ms. Robinson went over to the table but still did not see the licenses. The Respondent then went over to the table moved some magazines and telephone books around and pointed to the licenses, which were beneath a glass covered tabletop. Ms. Robinson looked around for the sanitation rules and noticed that they were posted on a wall but were partially obstructed from public view by other papers and announcements which were posted adjacent to them. At the conclusion of her inspection, Ms. Robinson completed another inspection form listing the violations and deficiencies observed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Respondent's license be placed on probation for a period of six (6) months and that an administrative fine of $500 be assessed. DONE and ORDERED this 29th day of December, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 29th day of December, 1986. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Findings of Fact 1 and 2. 2. Adopted in substance in Findings of Fact 4, 5 and 7. 3. Adopted in substance in Findings of Fact 4. 4. Adopted in substance in Findings of Fact 4. 5. Adopted in substance in Findings of Fact 6. 6. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Partially adopted in Findings of Fact 7, 8, 9, 10 and 11. Although Ms. Robinson observed a great deal of hair on the floor, that point was not alleged in the Administrative Complaint. Adopted in substances in Finding of Fact 7. Adopted in substance in Finding of Fact 7. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 6. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Donald H. Kirkby 88 East Blue Heron Boulevard Riviera Beach, Florida 33404 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Myrtle Aase, Executive Director Barbers Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what penalty should be imposed?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since September 10, 1980, licensed to practice cosmetology in the State of Florida. Her current license expires June 30, 1992. At all times material hereto, including August 8 and 17, 1990, Respondent has been an employee of the Salon D'Angelo, a cosmetology salon located in Coral Springs, Florida. Lewis Morganstern is an inspector with the Department. On August 8, 1990, Morganstern conducted an inspection of the Salon D'Angelo, including Respondent's work station. During his inspection, Morganstern observed that (a) Respondent did not remove hair from combs and brushes before using them on the next patron; (b) the barbacide Respondent used to sanitize her combs and brushes had hair floating in it; and (c) the drawer in which Respondent stored her combs and brushes also contained her personal belongings. Morganstern warned that these practices were unlawful and therefore should cease. Upon leaving, he advised that he would return to conduct a follow-up inspection. As promised, Morganstern returned to the salon on August 17, 1990. He found the same violations that he had observed during his initial inspection nine days earlier.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Cosmetology enter a final order (1) finding that Respondent committed the violations of law alleged in the instant Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $250.00 for having committed these violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of September, 1991. STUART M. LERNER 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 6th day of September, 1991. COPIES FURNISHED: Tracey S. Hartman, Esquire Mark Harris, Qualified Representative Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Kim Raffaelli Salon D'Angelo 4623 North University Drive Coral Springs, Florida 33065 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
