The Issue The issue is whether, as provided by Section 943.1395(7), Florida Statutes, Petitioner may discipline the correctional and law enforcement certificates of Respondent due to his failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. If Respondent is subject to discipline, an additional issue is the penalty that Petitioner should impose.
Findings Of Fact At all material times, Respondent was a certified law enforcement officer, holding certificate number 200241, and a certified correctional office, holding certificate number 182381. Petitioner certified Respondent as a correctional officer in 1998 and as a law enforcement officer in 2001. As a correctional officer, Respondent has worked at the South Florida Reception Center and Broward Correctional Institution. In December 2001, the Town of Golden Beach Police Department hired Respondent as a law enforcement officer. Respondent was employed at the Town of Golden Beach Police Department until December 31, 2002. He is presently unemployed. On December 12, 2002, Respondent visited a local lounge while off-duty. Sitting by himself, Respondent ordered a drink and visited the restroom before the server delivered the drink. Upon returning from the restroom, Respondent found the drink where he had been sitting. Respondent consumed the drink and went home. The next morning, Respondent reported to the police station and performed his usual duties, which included transporting witnesses to the State Attorney's Office, appearing in court, and picking up uniforms. Upon his return to the office, a fellow officer informed Respondent that the police chief had received a tip that Respondent had been smoking crack cocaine the prior night and had ordered Respondent to undergo a urinalysis. As directed by the chief, Respondent and the fellow officer immediately drove to the laboratory so that Respondent could provide a urine sample. Four days later, on December 17, 2002, the chief told Respondent that the urinalysis had returned a positive result for cocaine and placed Respondent on administrative leave. Two weeks later, Respondent resigned. The laboratory that conducted the urinalysis is certified by the National Institute of Drug Abuse as a forensic toxicology laboratory and is authorized by the Agency for Health Care Administration to perform drug-free workplace testing. On December 16, 2002, the laboratory screened the urine sample and found a positive result for a cocaine metabolite, benzoylecgonine. As is typical with initial screens that produce positive results, on December 20, 2002, the laboratory retested the urine sample by gas chromatography mass spectrometry (GC/MS), which is a sophisticated, sensitive test. The GC/MS confirmed the presence of benzoylecgonine at the level of 36,900 nanograms/milliliter (ng/ml). This level of cocaine metabolite is indicative of a large amount of cocaine ingested not long before the production of the urine sample. At the request of Respondent, the laboratory retested the urine sample a few months later and detected significant levels of a wide range of cocaine metabolites. At the request of Respondent's attorney, the laboratory sent part of the urine sample to a second, independent laboratory, which, performing GC/MS on December 10, 2003, reconfirmed the presence of cocaine metabolites. The reported level, presumably of benzoylecgonine, was over 10,000 ng/ml. The second laboratory reported a lower level because this was the maximum threshold of its testing equipment and protocol and possibly because the cocaine metabolites decompose over time, even in urine that has been frozen, as the first laboratory had done in preserving Respondent's urine sample. The only anomaly in the confirmatory test performed by the first laboratory appears at page 16 of Petitioner Exhibit 2. This document concerns the confirmatory testing performed on several samples, including Respondent's. In reporting testing parameters, the document states that the "ion ratio int. std." for Respondent's sample was 3.67. The bottom column suggests that the permissible range is 2.44-3.66. The form contains a statement at the very bottom: "REVIEWER: RESULTS OF GC/MS WERE WITHIN THE TOLERANCES ACCEPTABLE UNDER OUR SOP [STANDARD OPERATING PROCEDURE] FOR RETENTION TIME, QUANTIFICATION OF CONTROLS, MASS RATIOS, AND IDENTIFICATION WITH THE FULL SCAN MASS SPECTRUM." After this preprinted statement, the reviewer added in handwriting: "except 326340." This is the number assigned to Respondent's sample. Unfortunately, the parties did not address this anomaly in the confirmatory test, and the record does not explain the meaning of the reviewer's note or the out-of-range ion ratio. The only unusual feature of the first laboratory's confirmatory test, as revealed in the record, is that the laboratory used a smaller sample size because the results were so high that, absent a diluted sample, the first laboratory's equipment could not produce a concentration level. However, the process by which this adjustment is made is not unusual, and the first laboratory performed the necessary calculations to produce a correct result. The uncertainty introduced by the reviewer's note is eliminated, though, by the extremely high levels of cocaine reported by the second laboratory a few months later, and the wide range of cocaine metabolites reported by the first laboratory in its reconfirmation testing one year after the initial screening. Respondent's defense is that, unknown to him and while he was in the restroom, someone at the lounge poured a large amount of cocaine into his drink. This defense is unworthy of belief. Respondent claims that he conducted a personal investigation into his case after the drug test showed cocaine metabolites in his urine. In the course of this investigation, Respondent interviewed a bartender at a lounge some distance from the one that Respondent had visited on December 12, 2002. During this interview, a woman at the bar, Stacie Dalgleish, who had once been an inmate at a correctional facility at which Respondent had served as a correctional officer, overheard him talking about the facts of this case and interrupted Respondent's conversation to tell him that she had witnessed what happened to Respondent that night. As Ms. Dalgleish testified at the hearing, she told Respondent that, on the night in question, she had been at the same lounge and had seen another woman, Lisa Binger, who had been incarcerated with Ms. Dalgleish. While in a stall behind a closed door, Ms. Dalgleish witnessed Ms. Binger and another woman snort cocaine. Ms. Dalgleish explained that she had been able to see Ms. Binger because she was lined up perfectly with the crack between the stall door and the frame. Ms. Dalgleish testified that she then heard Ms. Binger tell her friend that she was going to get Respondent because he had gotten her friend. Later, while seated near the bar, Ms. Dalgleish testified that she saw Ms. Binger pour the white powdery contents of an envelope into Respondent's drink, while Respondent had left his drink unattended. For his part, Respondent "explained" that he had caused a friend of the Ms. Binger to lose her job as a bartender when he had reported to the bar owner that Respondent had seen the woman stealing cases of beer. The improbability that Ms. Binger would part with a large amount of cocaine to incriminate Respondent is moderate. The improbability of the chance encounter between Respondent and Ms. Dalgleish, while Respondent was conducting his investigation is high. The improbability that, in a public restroom, Ms. Binger would theatrically announce her plans to surreptitiously pour cocaine into Respondent's drink, as she recklessly snorted cocaine with another woman--all while observed by Ms. Dalgleish sitting in a closed stall, but peering through a crack in the door that happened to reveal the scene that she described--is incalculably high. Exacerbating these credibility problems was Ms. Dalgleish's performance as a witness. She was an eager witness who, upon concluding her testimony, quickly walked over to Respondent to obtain his approval of her unconvincing performance. Respondent is lying about how he came to ingest a large amount of cocaine a short time before his drug test.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's correctional officer and law enforcement officer certificates. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 14th day of July, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James C. Casey, Esquire Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134-6020 Rod Caswell, Program Director Division of Criminal Justice Professional Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issues are whether Respondent is in violation of section 464.018(1)(j), Florida Statutes (2020),1 by being unable to practice nursing with reasonable skill and safety; and, if so, the appropriate penalty. 1 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida Statutes. See McClosky v. Dep’t of Fin. Serv., 115 So. 3d 441 (Fla. 5th DCA 2013)(stating that a proceeding is governed by the law in effect at the time of the commission of the acts alleged to constitute a violation of law).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: The Department of Health, Board of Nursing, is the state agency charged with regulating nursing in the State of Florida, pursuant to chapters 456 and 464, Florida Statutes. Mr. Kemp is a combat veteran who participated in Operation Desert Storm. In 2004 or 2005, he earned a nursing degree from Virginia College and became licensed in the State of Florida as a licensed practical nurse (“LPN”). Mr. Kemp suffers from post-traumatic stress disorder (“PTSD”), anxiety, and depression. Three or four years ago, Mr. Kemp participated in an outpatient, substance abuse treatment program in Gulf Breeze, Florida. He successfully completed the program but was diagnosed with alcohol abuse disorder. During the Summer of 2020, Mr. Kemp was employed as the Assistant Director of Nursing at a healthcare facility called The Waterford at Creekside (“Creekside”). Belinda Kaye Bass was Creekside’s Director of Nursing and had known Mr. Kemp for approximately 10 years due to previously working with him at Southern Oaks Nursing Home. On approximately Tuesday, June 30, 2020, Mr. Kemp called Ms. Bass to tell her that he was having issues with his father. Mr. Kemp did not report for work the next day, and Ms. Bass became concerned when she was unable to reach him by telephone.3 Because she was already scheduled to leave Creekside’s campus for business purposes on July 2, 2020, Ms. Bass decided to visit Mr. Kemp’s home that morning in order to check on him. Mr. Kemp was at home that morning and had been drinking liquor prior to Ms. Bass’s arrival. At some point during her visit, she was alone in a room of the house and noticed a box containing a bottle of morphine on the floor. Upon picking it up, she discovered that the morphine belonged to a Creekside resident. When Mr. Kemp returned to the room, Ms. Bass asked him about the morphine, and he responded by telling her to leave and accused her of attempting to set him up. Ms. Bass thought that Mr. Kemp was acting paranoid and seemed impaired.4 Ms. Bass returned the morphine to Creekside and called the police. The seal on the morphine bottle was intact, and the police declined to pursue charges against Mr. Kemp. Creekside fired Mr. Kemp on July 3, 2020, for “gross misconduct.” Pursuant to its authority under section 464.018(1)(j), the Department ordered Mr. Kemp to undergo an evaluation of his mental and physical condition.5 Part of that evaluation was a phosphatidyl ethanol (“PEth”) test 3 Mr. Kemp testified that he had told an unidentified person in authority at Creekside on approximately June 30, 2020, that he was resigning because his workload was excessive. Ms. Bass was unaware of Mr. Kemp’s resignation, and her testimony on this point is credited. 4 Mr. Kemp denied that Ms. Bass found a resident’s medication in his home and asserted that Ms. Bass and his ex-wife were conspiring against him. Mr. Kemp’s testimony on this point is not credited. 5 Section 464.018(1)(j) subjects LPNs to discipline for “[b]eing unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon General or the State Surgeon General’s designee that probable cause exists to believe that the nurse is unable to practice nursing because of the reasons stated in this paragraph, the authority to issue an order to compel a nurse to submit to a mental or physical examination by physicians designated by the department. If the nurse refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the nurse resides or does business.” of Mr. Kemp’s blood. PEth levels are used to determine if someone drinks heavily or engages in binge drinking. A “normal” or “healthy” PEth level is 20 nanograms per milliliter. Mr. Kemp’s blood contained 317 nanograms per milliliter, and that amount is 15 to 16 times what is considered to be a healthy level. Mr. Kemp’s evaluation also consisted of a two-hour assessment by Dr. Jordan Iserman6 on November 2, 2020. Dr. Iserman considered Mr. Kemp’s PEth test result to be an indication of “pretty serious heavy binge drinking.”7 Dr. Iserman also evaluated Mr. Kemp based on the criteria for severe alcohol use disorder set forth in the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (“the DSM-5”).8 If a person satisfies at least two of the 11 criteria set forth in the DSM-5, then that person is thought to suffer from severe alcohol use disorder. Dr. Iserman thought that several of the DSM-5 criteria applied to Mr. Kemp, but two seemed particularly applicable to Mr. Kemp. For example, the DSM-5 indicates that one sign of severe alcohol use disorder is that the person in question has given up important social, occupational, or recreational activities. Dr. Iserman believes that criterion applies to Mr. Kemp because he was “more than comfortable just deciding he wasn’t going back to work.” Also, rather than giving Creekside a two weeks’ notice, he just stopped coming to work. 6 Dr. Iserman is licensed to practice medicine in Florida and is a board-certified psychiatrist and addictionologist. He has been qualified to render opinions regarding addiction medicine in at least 50 other legal proceedings, and the undersigned found him to be qualified to render opinion testimony regarding addiction medicine and related disorders. 7 In addition, a test of Mr. Kemp’s hair indicated that he had been using marijuana. 8 Using the criteria set forth in the DSM-5 to diagnose severe alcohol disorder is an accepted practice in addiction medicine. The DSM-5 also identifies “tolerance” as an indicator of severe alcohol use disorder. In other words, someone with an alcohol use disorder requires markedly increased amounts of alcohol in order to achieve intoxication. Dr. Iserman believes this criterion applies to Mr. Kemp because his PEth test indicated he has a high tolerance for alcohol. As for why someone with depression, PTSD, and severe alcohol use disorder would be unable to practice nursing with reasonable skill and safety, Dr. Iserman explained that alcohol use disorder exacerbates the symptoms of PTSD: Well, actually when you talk about someone with post-traumatic stress disorder, that is a very troubling syndrome whereby the person is continuously revisited by traumatic, sometimes near-death experiences, that have transpired in the past or they had seen a loved one shot and killed in front of them, something tremendous like that. And these people have terrible problems resting, sleeping, they become emotionally numb, they don’t want to have anything to do with people. And so clearly, and many times what they will reach for first is some alcohol because that’s going to numb them up. All right? But that only makes the depression and the anxiety from the post-traumatic stress disorder worse because the hallmark symptom of alcohol withdrawal is anxiety. So you’re sort of – it’s a downward spiral here with one acting on the other, each one acting on the other, to make them both worse. As for how alcohol use disorder affects someone suffering from depression, Dr. Iserman explained that: if you’re already depressed and then you’re drinking alcohol, you’re only – you can only expect that you’re going to intensify the level of depression that you had previously. And you know, does that push a person to the point where they – they’re not in their right mind and they decide to blow their brains out or drive their car into a tree or whatever it is? Certainly could. Dr. Iserman also described how severe alcohol use disorder and depression can impact an LPN’s ability to safety administer medication to patients: Well, if you go back to, you know, how alcohol impairs a [person’s] coordination, focus, and everything like that, I mean, LPNs are passing out medications to different individuals, some of them with morphine and things like that. They could very easily make a medication error and give the wrong person someone else’s medication which could have very serious if not lethal effects on the person that they gave it to by mistake. And it clearly would impair their ability to think clearly, focus, concentrate, not to mention the physical repercussions. * * * Well, if depression is – again, if it’s controlled, then they should be able to perform their chosen profession. Okay? If it’s not, depressed people don’t have a lot of motivation, they don’t have a whole lot of – it can affect them cognitively, emotionally, physically. It will totally destroy motivation, willingness to be [sic] significantly focused in on what it is that they’re supposed to do. They don’t have the motivation. They don’t have the energy. They don’t have [the] oomp to, you know, exert that type of energy. In sum, Dr. Iserman opined that Mr. Kemp is unable to practice nursing with a reasonable degree of skill and safety. Mr. Kemp testified that he has substantially curtailed his alcohol consumption since the PEth test described above. He asserts that he stopped drinking liquor in February or March of 2021 and has since restricted his alcohol consumption to 32 ounces of beer three or four days a week. As for why he supposedly made this change, Mr. Kemp explained that: I was going through a lot, and I noticed that I was drinking a little too much. I was a caregiver for my mom. My mom had passed, my nephew had passed. So, yeah – and I was going through a divorce. So yeah, I noticed that I was drinking too heavy and I talked to some of my family members, and they told me that I need[ed] to slow it down, and that’s what I did. Mr. Kemp’s assertions that he has curtailed his alcohol consumption and restricted himself to beer did not change Dr. Iserman’s opinion that Mr. Kemp is unable to practice nursing with reasonable skill and safety: A: Well, because as I indicated before, it doesn’t really make any difference about, you know, what the source of the alcohol is. If he says all I’m drinking is beer, well, how much beer is he drinking? Okay? And, you know, I suppose you could go back and do another PEth test, but the fact remains that the behavior hasn’t changed. Okay? I mean, this is not an individual, number one, who sees himself as having a problem and so, therefore – you know, that’s the great thing about substance abuse, denial. I didn’t do that. I don’t have a problem. You know, [why] are you coming at me with this stuff? Okay? It allows them to basically continue to go ahead, you know, act out, you know, mistreat[ing] other people plus themselves, or whatever it is that they do, and basically not be bothered by it all. And if they’re in denial, they’re not going to do anything about it. Q: In your experience, do people with alcohol abuse disorder tend to minimize their reports of how much alcohol they drink? A: Oh, routinely. Q: Okay. At his deposition, Mr. Kemp stated that he drinks a quart of beer at a time three to four times a week. If Mr. Kemp’s reports are true, would your opinion that Mr. Kemp is not able to practice nursing with reasonable skill and safety to patients change? A: No. Q: Why not? A: Well, again, I would say using myself as an example, I know that if I put away a quart of beer three to four times a week, I would not be doing very well. Any by the way, there’s an unwritten rule, if you talk to somebody and you ask them how [much] they drink – now, this is not scientific, and I can’t show it to you in a book. It goes with, you know, experience with this stuff. Whatever [a] person tells you that they drink, double it and you might be at the lower end of what they’re really doing. Mr. Kemp underwent additional testing on June 15, 2021, and a second PEth test returned a result of 243 nanograms per milliliter. That result and other results (or lack thereof) from a second round of testing also had no impact on Dr. Iserman’s opinion regarding Mr. Kemp’s ability to practice nursing with reasonable skill and safety: Q: Based on Mr. Kemp’s [second] PEth test results, has your opinion that Mr. Kemp is not able to practice nursing with reasonable skill and safety to patients changed? A: No. Q: Is the PEth test result consistent with someone who drinks a quart of beer three to four times a week? A: I’m thinking he’s drinking more than that. Q: Did – you mentioned that Mr. Kemp also tested positive for an ETG test; is that correct? A: Ethyl glucuronide. And actually, when we did the original hair test, he came up positive for marijuana. Now, when we sent him back for the updated PEth test and the urinalysis, we also sent [him] back for another hair test. He arrived there freshly shaven, so there was no hair to test. However, we also have what are called nail tests. Okay? And they can sometimes trace these things back even further. Mr. Kemp refused that test. Q: Okay. And what does that indicate to you? A: Well, it would indicate that if I had nothing to hide or anything to be concerned about, you know, my fingernails will grow back. I don’t know why I would refuse that test. * * * Q: Did [Mr. Kemp] take a urinalysis on June 15, 2021 as well? A: Yes. Q: And was that positive? A: For ethyl glucuronide, yes. * * * Q: Does it show – does it tell you how – when the last time someone consumed alcohol? A: Unlike the phosphatidyl ethanol, the hair testing, the nail testing, and things like that which can go back – nails can go back sometimes almost a year, okay, but ethyl glucuronide does not hang around that long. It is probably going to be gone I would say within a week. Q: So that positive test would mean that Mr. Kemp had consumed alcohol in the last week, for instance? A: Recently. I mean, he would have to have had something recently. As for a treatment recommendation, Dr. Iserman would refer Mr. Kemp to the Interventional Project for Nurses (“IPN”), which could lead to an in-patient treatment program of at least 30 days. After completion of such a program, Dr. Iserman would recommended toxicology monitoring, peer meetings such as those in a 12-step program, psychiatric treatment, and participation in a nurses’ support group. The findings set forth above amount to clear and convincing evidence that Mr. Kemp is unable to practice nursing with reasonable skill and safety.
Conclusions For Petitioner: Amanda M. Godbey, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Walter Lindsey Kemp, Jr., pro se 855 Limoges Way Pensacola, Florida 32505
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: (a) finding Walter Lindsey Kemp, Jr., L.P.N. violated section 464.018(1)(j); (b) imposing a $250 fine; and (c) suspending Mr. Kemp’s licensed practical nursing license until such time that he enters into a monitoring contract with IPN and complies with any and all terms and conditions imposed by IPN.9 DONE AND ENTERED this 4th day of October, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2021. Amanda M. Godbey, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Walter Lindsey Kemp, Jr. 855 Limoges Way Pensacola, Florida 32505 Deborah McKeen, BS, CD-LPN Department of Health Bin D-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 Joe Baker, Jr., Executive Director Department of Health, Board of Nursing 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 9 Section 456.072(4) provides that “[i]n addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, under this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the department when there is no board, shall assess costs related to the investigation and prosecution of the case.”
The Issue This case is presented as rules challenges to certain matters allegedly undertaken by the Respondent and is brought in accordance with the authority set forth in Section 120.56, Florida Statutes. Petitioner asserts that there exist two rules within the meaning of Subsection 120.52(14), Florida Statutes, which have not been duly promulgated in keeping with the terms and conditions of Section 120.53, Florida Statutes. The items which are challenged by this Petition are: The Respondent's Contract Management System Manual (HRSR-0-75-1). The execution document involved in the award of contract No. 1979 DA-1, entitled "Design and Delivery of Drug Abuse Training Support Program", which was awarded to the Florida Council for Community Mental Health, Inc.
Findings Of Fact In support of its case the Petitioner presented one item of evidence. This item was received as Petitioner's Exhibit No. 1. The exhibit is a memorandum letter from Robert A. Furlough, Acting Mental Health Program Staff Director, addressed to Abe Lavine and it is entitled "Procedure in the Selection of the Most Appropriate Service Provided for Design Delivery of Training". Notwithstanding the title of the letter, it is in fact a summarization of the steps taken by the Respondent in the award of the "Design and Delivery of Training" element of the "State Training Support Program". In the course of the letter it discusses the fact that the Contract Management System Manual (HSRS-0-75-1) was utilized; however, that manual was not appended to the correspondence and was not offered in the course of the hearing. Likewise, the document of execution of the award of Contract No. 1979 DA-1, for the "Design and Delivery Training" element of the "State Training Support Program", if such a document exists, was not offered as evidence in the hearing sub judice.
