97-004055 Board Of Nursing vs. Lynda M. Sams Status: Closed Recommended Order on Monday, January 26, 1998.

Summary: Petitioner may not discipline nursing license when nurse shows the State of Virginia revoked her license without notice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 97-4055

)

LYNDA M. SAMS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

R obert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on December 2, 1997.

The parties, attorneys for the parties, witnesses, and court

reporter participated by videoconference in Fort Myers,

Florida.

APPEARANCES

For Petitioner : Thomas E. Wright

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent : T. A. Delegal, III

Delegal & Merrett, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Sections

455.227(1)(q), 455.227(1)(f), and 464.018(a)(b), Florida

Statutes, and Rule 64B9-8.005(1)(b), Florida Administrative

Code, by a denial of an application in another state.

PRELIMINARY STATEMENT

By Administrative Complaint, Petitioner alleged that on

June 6, 1996, Virginia denied Respondent’s application for a

nursing license on the grounds of Respondent’s alleged

diversion of controlled substances and unprofessional conduct.

On this basis, Petitioner sought to discipline Respondent’s

Florida nursing license. Respondent denied the material

allegations and demanded a formal hearing.

At the hearing, each party called one witness.

Petitioner offered into evidence two exhibits, which were

admitted.

The court reporter filed the transcript on December 24,

1997.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed

as a registered nurse in Florida, holding license number RN

1446212. She has been so licensed for 14 years. Her home

address is in Plattsburg, New York.

2. For most of her career, Respondent has worked as a

traveling nurse and is licensed in at least six states. In

this capacity, Respondent has been employed by an agency and

assigned to various temporary assignments around the country.

3. At one point, Respondent worked as a traveling nurse

in Virginia. Using a temporary nursing license, Respondent

worked for one week at a Virginia hospital. She had intended

to work the typical 6-13 weeks. However, she returned home

prematurely following an incident at the hospital to which she

had been assigned.

4. There had been a problem with diverted controlled

substances at this hospital prior to Respondent’s arrival.

After a few days on the job, someone accused Respondent of

diverting controlled substances, and the hospital

administration suspended Respondent without pay. Under her

agency arrangement, Respondent did not have to pay her lodging

expenses. However, as a result of the suspension, she was

left with this expense and no income to pay it, so she readily

returned home and, at some point, accepted another assignment.

She never learned of any adverse action taken against her in

Virginia for the alleged incident at the hospital.

5. Unknown to Respondent, her application for a

temporary license in Virginia automatically constituted an

application for a permanent license. Although Respondent

received no prior notice of the Virginia nursing board’s

action, the board eventually denied her licensure on the basis

of the alleged incident at the hospital.

6. Petitioner presented this case on the basis of the

license denial of the Virginia board of nursing. The evidence

in this record does not establish that Respondent committed

the acts of which she was accused at the Virginia hospital.

Moreover, the evidence in this record establishes that

Respondent did not receive notice and an opportunity to be

heard on the Virginia charges prior to or following the

Virginia license denial.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

8. Section 455.227(1)(f) authorizes discipline for

“[h ]aving a license to practice nursing revoked, suspended, or

otherwise acted against, including the denial of licensure, by

the licensing authority of another state, territory, or

country.”

9. Rule 64B9-8005(1)(b) provides that the Board of

Nursing “shall” impose discipline upon a determination that a

licensee has had disciplinary action taken against a nursing

license by another jurisdiction.

10. Under the Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution, no state may revoke a

licensee’s property right in his or her license without due

process of law. Section 455.227(1)(f) implicitly requires

that the adverse action by another jurisdiction comply with

the requirements of due process, such as notice and an

opportunity to be heard. Due process is insufficient if it

merely ensures notice and an opportunity to be heard as to the

Florida charges, if they are based on another jurisdiction’s

disciplinary action, when the licensee shows, as has

Respondent in this case, that the disciplinary action taken in

the other jurisdiction did not comply with the requirements of

due process.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order

dismissing the administrative complaint.

DONE AND ENTERED this 26th day of January, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

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 [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 1998.

COPIES FURNISHED:

Thomas E. Wright

Office of the General Counsel

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

T. A. Delegal, III

Delegal & Merrett, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

Angela T. Hall, Agency Clerk

Department of Health

Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Marilyn Bloss, Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

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 must be filed with the

agency that will issue the final order in this case.