10-000855PL Department Of Health, Board Of Nursing vs. Fedeline Georges, C.N.A. Status: Closed Recommended Order on Monday, May 17, 2010.

Summary: Respndent stole a wallet from a patient and is guilty of unprofessional conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 10-0855PL

)

FEDELINE GEORGES, C.N.A., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on April 1, 2010, in Lakeland, Florida, before Susan B. Harrell,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Thomas L. Dickens, Esquire

William Miller, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399

For Respondent: Bradley Laurent, Esquire

550 Bumby Avenue, Suite 280

Orlando, Florida 32803

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsections 464.204(1)(b) and 464.018(1)(h), Florida Statutes

(2008), 1 and Florida Administrative Code Rule 64B9-8.005(1)(h),

and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On December 17, 2009, the Department of Health (Department)

filed an Administrative Complaint before the Board of Nursing

(Board), alleging that Respondent, Fedeline Georges, C.N.A.

(Ms. Georges), violated Subsections 464.204(1)(b) and

464.018(1)(h), Florida Statutes, and Florida Administrative Code

Rule 64B9-8.005(1)(h), by stealing a patient’s wallet.

Ms. Georges requested an administrative hearing, and, on

February 17, 2010, the case was forwarded to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge to conduct the final hearing.

On March 17, 2010, the Department filed a Motion for Taking

Official Recognition of Subsections 464.204(1)(b) and

464.018(1)(h) and Section 20.43, Florida Statutes, and Florida

Administrative Code Rules 64B9-8.005(1)(h) and 64B9-8.006. The

motion was granted by Order dated April 6, 2010.

A telephonic pre-hearing conference was held on March 18,

2010. The parties agreed at the pre-hearing conference that a

patient who would be testifying at hearing could testify through

the use of a “word board” because of her limited ability to

communicate orally. The parties agreed that the witness would

touch letters on the word board in response to questions and

that the undersigned would read the letters to which the witness

pointed.

During the pre-hearing conference, the Department made an

ore tenus motion to correct a scrivener’s error in the

Administrative Complaint. The motion was granted, and the

Department filed its Amended Administrative Complaint on

March 18, 2010.

At the final hearing, the parties agreed to certain facts

contained in Section E of each of the parties’ unilateral pre-

hearing statements. Those facts have been incorporated into

this Recommended Order, to the extent relevant.

At the final hearing, the Department called the following

witnesses: Christina Barrett, Sherry Harden, Pamela Rawlinson,

and T.K. Petitioner’s Exhibits 1 through 3 were admitted into

evidence. At the final hearing, Ms. Georges testified in her

own behalf and presented no exhibits for admission into

evidence.

The one-volume Transcript was filed on April 14, 2010. The

parties agreed to file their proposed recommended orders within

ten days of the filing of the Transcript. The Department filed

Petitioner’s Proposed Recommended Order on April 26, 2010, and

Ms. Georges filed her proposed recommended order on April 8,

2010. Both parties’ proposed recommended orders have been given

consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is charged with regulating the practice

of nursing pursuant to Section 20.43 and Chapters 456 and 464,

Florida Statutes.

2. At all times material to this proceeding, Ms. Georges

was a certified nursing assistant (CNA) within the State of

Florida, having been issued license number CNA 139966.

3. On May 10, 2009, Ms. Georges was employed at Valencia

Hills Health and Rehabilitation Center (Valencia Hills) in

Lakeland, Florida, as a CNA.

4. T.K. is a patient at Valencia Hills and suffers from a

muscular disease, which prohibits her from being able to

communicate orally. At the final hearing, T.K. appeared to be

mentally alert and responded well to the questions being asked

of her. She communicates through the use of a word board, which

contains letters of the alphabet and numbers. When she wants to

communicate, she points to the letters of each of the words she

is trying to convey. She can convey affirmative and negative

answers with nods and shakes of her head. T.K. is not

ambulatory.

5. On May 10, 2009, Ms. Georges worked a double shift at

Valencia Hills from 3:00 p.m. to 11:00 p.m. and from 11:00 p.m.

to 7:00 a.m. She was assigned to T.K. for both shifts.

Ms. Georges was not regularly assigned to provide care for T.K.,

and her assignment on May 10, 2009, was only the second time

that she had provided care for T.K.

6. Sometime during the day of May 10, 2009, T.K. left the

facility and visited with her family. She returned to the

facility and went to bed around 10:30 p.m. She was tired, but

did not fall asleep immediately.

7. T.K. kept her wallet and her cellular telephone in her

purse at the foot of her bed. Around 10:45 p.m. on May 10,

2009, T.K. saw a shadow of a person taking the wallet from

T.K.’s purse and placing the wallet inside the waist of the

person’s pants. T.K. identified the shadow as Ms. Georges based

on Ms. Georges’ hair. T.K. did not report the theft until the

following morning when she was brought her breakfast. T.K. did

not report the theft earlier because she was tired and wanted to

sleep.

8. On the morning of May 11, 2009, T.K. advised Shirley

(last name unknown), who was the activities assistant at

Valencia Hills, that her wallet had been stolen by Ms. Georges.

T.K. told Shirley that there was ten dollars in her wallet.

T.K. also told Sherry Harden that her wallet had been taken and

the amount of money that was in the wallet. Ms. Harden was a

nurse manager at Valencia Hills and was in charge of managing

nurses and CNAs.

9. Ms. Harden notified the assistant director of nursing

at Valencia Hills and the risk manager. The police were

notified that a possible theft had occurred and Officer

Christina Barrett was dispatched to Valencia Hills to

investigate.

10. Officer Barrett talked to T.K., who identified

Ms. Georges as the person who took her wallet. After obtaining

Ms. Georges’ telephone number from staff at Valencia Hills,

Officer Barrett called Ms. Georges and asked to meet with her.

Officer Barrett went to Ms. Georges’ home and told Ms. Georges

that T.K. had accused her of taking T.K.’s wallet. Ms. Georges’

first response was not a denial of the allegation, but the

following statement: “How can she report that, she cannot even

speak?” To Officer Barrett, Ms. Georges appeared that she “was

more concerned about [T.K.’s] inability to be able to report

this crime versus her [Ms. Georges’] involvement in it.”

11. Ms. Georges returned to Valencia Hills, where Officer

Barrett, T.K., Ms. Georges, and staff from Valencia Hills met in

a vacant patient’s room to discuss the issue. Ms. Georges

became agitated and at one point stated: “I can’t believe that

you are going to charge me for ten dollars?” Ms. Georges claims

that Officer Barrett had told her the amount of money that was

in the wallet. In response to the question at final hearing of

whether she had told Ms. Georges the amount of money in the

wallet, Officer Barrett replies: “Not that I recall.” There is

no reference in Officer Barrett’s report concerning the amount

of money that was in the wallet or that she told Ms. Georges the

amount. Ms. Harden, who knew the amount of money in the wallet,

did not tell Ms. Georges how much was in the wallet.

12. During the interview, Ms. Georges became

confrontational with T.K. to the point that the assistant

director of nursing had Ms. Georges escorted from the facility.

Ms. Georges attempted to reenter the room where the interview

was being held and was again escorted from the facility.

Ms. Georges’ employment at Valencia Hills was terminated because

of her actions during the interview.

13. Ms. Georges told Officer Barrett that she had found

T.K.’s cellular telephone and her wallet in a bag with some

urine-soaked clothes that T.K. had brought back from her trip

home that day. According to Ms. Georges, she put the wallet in

the cabinet next to T.K.’s bed. T.K. told Officer Barrett that

Ms. Georges did not place the wallet in the cabinet. At the

final hearing, T.K. testified that Ms. Georges put the wallet in

her pants. Having observed the demeanor of the witnesses,

Ms. Georges’ testimony that she put the wallet in the cabinet is

not credited.

14. At the final hearing, T.K. was adamant that she saw

Ms. Georges take her wallet. T.K. physically pointed to

Ms. Georges at the final hearing, identifying her as the

culprit. Despite her difficulties in communicating, T.K. did

not waiver from her identification of Ms. Georges. T.K.’s

testimony is credited that Ms. Georges stole her wallet.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

16. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996).

17. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983); see also In re Adoption of Baby E. A. W. , 658 So. 2d 961,

967 (Fla. 1995)("The evidence [in order to be clear and

convincing] must be of sufficient weight to convince the trier

of fact without hesitancy."). "Although this standard of proof

may be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Electric

Corporation, Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 988

(Fla. 1st DCA 1991). Shore Village Property Owners’ Ass. Inc.

v. Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002).

18. The Department alleges that Ms. Georges violated

Subsection 464.204(1)(b), Florida Statutes, which provides that

the intentional violation of any provisions of Chapters 464

and 456, Florida Statutes, or the rules promulgated by the Board

is a ground for discipline. The Department also alleges that

Ms. Georges violated Subsection 464.018(1)(h), Florida Statutes,

which provides that unprofessional conduct as defined by the

Board’s rules shall constitute a ground for disciplinary action.

The Department alleges that Ms. Georges has violated Florida

Administrative Code Rule 64B9-8.005(4), which provides that

unprofessional conduct includes stealing from a patient.

19. The evidence is clear and convincing that Ms. Georges

took T.K.’s wallet while under her care at Valencia Hills. The

Department has established that Ms. Georges has committed

unprofessional conduct as defined by Florida Administrative Code

Rule 64B9-8.005 and, therefore, is guilty of violating

Subsections 464.204(1)(b) and 464.018(1)(h), Florida Statutes.

20. Based on the disciplinary guidelines set forth in

Florida Administrative Code Rule 64B9-8.006, an appropriate

penalty would be imposition of a $250.00 administrative fine and

placing Ms. Georges on probation for two years under conditions

prescribed by the Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Ms. Georges violated Subsections 464.204(1)(b) and

464.018(1)(h), Florida Statutes, and Florida Administrative Code

Rule 64B9-8.005; imposing an administrative fine of $250; and

placing Ms. Georges on probation for two years under conditions

as prescribed by the Board.

DONE AND ENTERED this 17th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May, 2010.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version.

COPIES FURNISHED :

Bradley Laurent, Esquire

550 Bumby Avenue, Suite 280

Orlando, Florida 32803

Thomas L. Dickens, Esquire

William Miller, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Rick Garcia, MS, RN, CCM,

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C-02

Tallahassee, Florida 32399-1701

Dr. Jessie M. Colin, RN, Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.