The Issue The primary issue in this case is whether Respondent pleaded no contest to, or was convicted of, crimes which directly relate to the practice of nursing. If so, then it will be necessary to determine an appropriate penalty for each such plea or conviction. In addition, a penalty must be formulated for Respondent's undisputed failures to tell the Board of Nursing about a plea he entered, and a conviction he suffered, within 30 days after the respective events.
Findings Of Fact At all times relevant to this case, Respondent Frankla M. LaFergola, R.N. ("LaFergola"), was a Florida-licensed registered nurse, having been issued license number RN2915432. Petitioner Department of Health (the "Department") has regulatory jurisdiction over registered nurses such as LaFergola. In particular, the Department is authorized to file and prosecute an administrative complaint against a nurse, as it has done in this instance, when a panel of the Board of Nursing has found that probable cause exists to suspect that the licensee has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged LaFergola with two such offenses, namely, (1) being found guilty of, or pleading to, a crime which directly relates to the practice of nursing or the ability to practice nursing (two instances); and (2) failing timely to report a conviction or plea to the Board of Nursing (two instances). On September 23, 1999, in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, LaFergola was sentenced to probation with conditions after entering a plea of no contest to one count of child abuse as defined in section 827.03(1)(b), Florida Statutes (1998). The court withheld adjudication of guilt. The elements of the crime to which LaFergola pleaded no contest were defined, in relevant part, as follows: "Child abuse" means: * * * An intentional act that could reasonably be expected to result in physical or mental injury to a child; * * * A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 827.03, Fla. Stat. (1998). LaFergola failed to report his no-contest plea to the Board of Nursing within thirty days after entering the plea. At the time LaFergola pleaded no contest to the charge of child abuse, section 464.003(3)(a) defined the term "practice of professional nursing" to mean the performance of those acts requiring substantial specialized knowledge, judgment, and nursing skill based upon applied principles of psychological, biological, physical, and social sciences which shall include, but not be limited to: The observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care; health teaching and counseling of the ill, injured, or infirm; and the promotion of wellness, maintenance of health, and prevention of illness of others. 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. The supervision and teaching of other personnel in the theory and performance of any of the above acts. (Emphasis added). There is a negative correlation between (a) the commission of an intentional act that could reasonably be expected to result in physical or mental injury to a child and, e.g., (b) the promotion of wellness, maintenance of health, and prevention of illness of others. That is, there is an inverse relationship between operations (a) and (b) inasmuch as an act of child abuse damages another person's health, whereas the promotion of wellness aims to enhance or restore another person's health; the performance of one, in short, undoes the effect of the other. Because both types of action——child abuse and professional nursing——affect the health and welfare of others, albeit in opposite ways, they are logically connected as diametric behaviors. Consequently, the crime of child abuse directly relates to the practice of nursing. On March 25, 2008, in the Circuit Court of the Nineteenth Judicial Circuit, St. Lucie County, a judgment of conviction was entered against LaFergola, who had been found guilty by a jury of the crime of soliciting a child via computer to engage in lewd behavior. To secure LaFergola's conviction of this particular crime, the government proved the following constituent elements beyond a reasonable doubt: CERTAIN USES OF COMPUTER SERVICES PROHIBITED.--Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 847.0135(3), Fla. Stat. (2005). LaFergola failed to report to the Board of Nursing, within 30 days after being convicted, that he had been found guilty of lewd computer solicitation of a child. Based on this conviction, the court sentenced LaFergola to a term of 28.05 months' incarceration, to be followed by 31 months of Sex Offender Probation. The conditions of Sex Offender Probation generally prohibited LaFergola from having contact with or being near children under the age of 18, among other restrictions on his liberty. The crime of lewd online solicitation of a child directly relates to the practice of nursing for the same reasons, previously discussed, that the crime of child abuse directly relates to the practice of nursing.1/ Ultimate Factual Determinations The Department has established by clear and convincing evidence that LaFergola entered a plea of no contest to a crime (child abuse) which directly relates to the practice of nursing. LaFergola is therefore guilty of the offense defined in section 464.018(1)(c), Florida Statutes (1999). The Department has established by clear and convincing evidence that LaFergola was found guilty of a crime (lewd online solicitation of a child) which directly relates to the practice of nursing. LaFergola is therefore guilty of the offense defined in section 464.018(1)(c), Florida Statutes (2007). The Department has established by clear and convincing evidence that LaFergola failed to report to the Board of Nursing, within 30 days after the event, that he had entered a plea of no contest to a charge of child abuse. Consequently, LaFergola is guilty of the offense defined in section 455.624(1)(w), Florida Statutes (1999). The Department has established by clear and convincing evidence that LaFergola failed to report to the Board of Nursing, within 30 days after the event, that he had been found guilty of lewd online solicitation of a child. For that reason, LaFergola is guilty of the offense defined in section 456.072(1)(x), Florida Statutes (2007).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding LaFergola guilty of the offenses charged in the Amended Administrative Complaint. It is further RECOMMENDED that the Board of Nursing revoke LaFergola's license, thereby denying him the right to practice nursing in the state of Florida unless he obtains a new license, for which he may not apply until after the expiration of a period of ineligibility not exceeding 10 years; and impose an administrative fine of $1,500. DONE AND ENTERED this 3rd day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2014.
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing assistance pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes. At all times relevant to these proceedings, Respondent was a certified nursing assistant, having been issued license number 84961. Her address with the Department of Health is Post Office Box 402, McIntosh, Florida 32664. On June 25, 2007, a Final Order was entered by the Board of Nursing against Respondent. The Final Order required Respondent to pay a fine of $50.00, enroll in and successfully complete courses in Legal Aspects for Nursing Assistants, and placed Respondent on probation for two years. A condition of the two-year probation was “[w]hether employed as a nurse or not, the licensee shall submit written reports to the Nursing Compliance Officer which shall contain the licensee’s name, license number, and current address; the name, address, and phone number of each current employer; and a statement by the licensee describing her employment. This report shall be submitted to the Nursing Compliance Officer every three (3) months in a manner as directed by the Nursing Compliance Officer.” (Emphasis supplied.) Respondent’s probation required that she “be responsible for assuring that reports from nursing supervisors will be furnished to the Nursing Compliance Officer every three (3) months. That report shall describe the licensee’s work assignment, work load, level of performance, and any problems." Quarterly self-reports and reports from her nursing supervisor, if any, were due to the Department on September 24, 2007, December 24, 2007, March 24, 2008, June 24, 2008, September 24, 2008, December 24, 2008, March 24, 2009, and June 24, 2009. Failure to comply with the terms of probation contained in the Final Order without prior written consent from the Board of Nursing was a violation of Respondent’s probation. As part of the Final Order a Notice of Appeal Rights was included, indicating that Respondent had 30 days to file a Notice of Appeal with the clerk of the department pursuant to Section 120.68, Florida Statutes, if she wanted to challenge the Final Order. Shaila Washington, a compliance officer for the Board of Nursing, was Respondent’s compliance officer. As Respondent’s compliance officer, Ms. Washington mailed Respondent the Board of Nursing's standard information packet on July 18, 2007. The packet outlines the terms imposed by the Board and summarizes what the Respondent needed to do in order to comply, including definite due dates listed above. The letter accompanying the information packet states in bold, "Remember, it is your responsibility to read the final order and ask questions if you do not understand it." Respondent did not contact her compliance officer regarding the information packet mailed to her. She also did not appeal the final order. Ms. Washington testified, and Respondent confirmed, that Respondent failed to submit any of the quarterly reports, by Respondent or any supervisor, as required pursuant to the terms of Respondent’s probation. Respondent stated that she did not file any of the reports because she was not working as a CNA. However, the Final Order was clear that even if Respondent was not employed, she was required to follow the probation terms and submit the reports.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Nursing enter a Final Order finding that Respondent has violated Section 464.204(1)(b) and Section 456.072(1)(q), Florida Statutes. It is further recommended that Respondent’s license to practice nursing assistance be reprimanded and that Respondent’s license be suspended, with the suspension stayed for 60 days to allow Respondent to comply with the terms of the Board’s prior Final Order. If within 60 days Respondent has not complied with the terms of the Board’s prior Final Order, it is recommended that the stay will be lifted and the suspension be imposed. The suspension will be lifted upon Respondent’s compliance with the Board’s prior Final Order. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2009.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Respondent, Nancy Drennen, receive a letter of reprimand. In making this recommendation, the Hearing Officer specifically considers the outstanding comments made about the Respondent by her Dr. Roberts and her coworkers, the fact that she has been employed as an OH nurse since January of 1979, performing her duties without complaint or incident, and the fact that the complaint was filed against her so long after the incident that it truly diminished the Respondent's ability to defend herself. DONE and ORDERED this 29th day of May, 1980, In Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
