05-001133PL Department Of Health, Board Of Nursing vs. Bertha Harris Status: Closed Recommended Order on Thursday, August 18, 2005.

Summary: Respondent violated Section 464.018, Florida Statutes, by leaving a nursing assignment without advising the licensed nursing personnel.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1133PL

)

BERTHA HARRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to notice, a final hearing was held in this case

on July 22, 2005, in Viera, Florida, before Susan B. Harrell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Patrick L. Butler, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Bertha Harris, pro se

1245 Linmoor Circle

Palm Bay, Florida 32905

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 464.018(1)(h),

Florida Statutes (2003), 1 and Florida Administrative Code

Rule 64B9 - 8.005(1)(c), and, if so, what discipline should be

impos ed.

PRELIMINARY STATEMENT

On September 1, 2004, Petitioner, Department of Health,

Board of Nursing (Department), filed an Administrative Complaint

against Respondent, Bertha Harris (Ms. Harris), alleging that

she violated Subsection 464.018(1)(h), Florida Statutes, for

unprofessional conduct as defined by Florida Administrative Code

Rule 64B9 - 8.005(1)(c), by leaving a nursing assignment without

advising licensed nursing personnel. Ms. Harris requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on March 28, 2005, for

assignment to an administrative law judge.

The final hearing was scheduled for May 12, 2005, but was

continued twice at the request of Ms. Harris. At the final

hearing, the Department calle d the following witnesses: Linda

Lee Lovewell, Arthur H. Hutchins, Patty Avila, and Janice

Nicolai. Petitioner's Exhibits 1, 2A through 2F, and 3 were

admitted in evidence. At the final hearing Ms. Harris testified

in her own behalf and presented no exh ibits.

The parties agreed to file their proposed recommended

orders within ten days of the filing of the Transcript, which

was filed on August 2, 2005. The Department filed a Proposed

Recommended Order on August 11, 2005. As of the date of this

Recommend ed Order, Ms. Harris, has not filed any post - hearing

submittal.

FINDINGS OF FACT

1. On March 14, 2004, Ms. Harris was employed at Melbourne

Terrace Residential Care Center (Melbourne Terrace) as a

certified nurs ing assistant (C.N.A.). Melbourne Terrace i s a

long - term care facility for geriatric residents.

2. On January 26, 2004, Ms. Harris was permanently

assigned to the 11:00 p.m. - to - 7 a.m. shift on the west wing of

the facility. On March 5, 2004, Ms. Harris tendered her

resignation effective March 24, 2004.

3. On March 14, 2004, Ms. Harris clocked - in at around

10:45 p.m. Ms. Linda Lovewell, a supervising licensed practical

nurse (L.P.N.) , had been advised that the east wing was short a

C.N.A. on that date. She reassigned Ms. Harris to the east wing

for the 11:00 - to - 7:00 shift. Two L.P.N.s , Patty Avila and Olga

Vickerie, were working as supervisors on the east wing that

evening.

4. When Ms. Harris got to the east wing, she was advised

by Ms. Avila that she could not work on the east wing because

Ms. Harris' sister also worked the same shift on the east wing.

Apparently, Melbourne Terrace had adopted a policy that

relatives could not work on the same wing during the same shift.

5. Ms. Avila told Ms. Harris to wait until she could call

a supervisor t o straighten out the reassignment. Ms. Harris was

not given specific permission to go home. Ms. Harris did not

wait, but clocked - out at 11:09 p.m. She did not advise either

Ms. Avila, Ms. Lovewell, or Ms. Vickerie that she was clocking -

out.

6. At the f inal hearing , Ms. Harris explained that she

left because she had ridden to work with her sister and needed

to catch a ride home with her cousin if she was not going to be

able to work that evening. Although, there may have been a

policy that would have pr evented Ms. Harris from working on the

east wing that evening, there was no evidence presented that

Ms. Harris would have been prohibited from working on the west

wing, which was her regular assignment.

7. Ms. Avila did not realize that Ms. Harris had lef t the

facility until about an hour into the shift. She assumed that

Ms. Harris was not on the east wing because she was cooling off

because she was angry.

8. Melbourne Terrace's employee handbook provides that

"[e]mployees may not leave assigned work are a without the

approval of the supervisor." Ms. Harris had received and read

the handbook and was aware that she had to notify her supervisor

before leaving.

9. Melbourne Terrace was short one C.N.A. on March 14,

2004. Because of Ms. Harris' abrupt depa rture, the facility was

unable to secure a substitute C.N.A., leaving Melbourne Terrace

in possible violation of staffing requirements and creating

difficulties for lack of time to find a substitute C.N.A.

CONCLUSIONS OF LAW

10 . The Division of Admin istrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).

1 1 . The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convi ncing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). In Slomowitz

v. Walker , 429 So. 2d 7 9 7 (Fla. 4th DCA 1983), the court

developed a working definition of "clear and convincing

evidence," which has bee n adopted by the Florida Supreme Court

in In re Davey , 645 So. 2d 398 (Fla. 1994). The court in

Slomowitz stated:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be dis tinctly 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, with out hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz , 429 at 800.

1 2 . The Department alleged that Ms. Harris violated

Subsection 464.018(1)(h), Florida Statutes, which provides

that disciplinary action may be taken for "[u]nprofessional

conduct, as defined by board rule." The Department further

alleged that Ms. Harris violated Florida Administrative Code

Rule 64B9 - 8.005(1)(c), which defines unprofessional conduct to

include "[l]eaving a nursing assignment without advi sing

licensed nursing personnel."

1 3 . The Department has established by clear and convincing

evidence that Ms. Harris left her nursing assignment on

March 14, 2004, without advising licensed personnel that she

was leaving. Thus, the Department has estab lished a violation

of Subsection 464.018(1)(h), Florida Statutes, for

unprofessional conduct as defined by Florida Administrative

Code Rule 64B9 - 8.005(1)(c).

1 4 . Florida Administrative Code Rule 64B9 - 8.006(3)(p)

provides that the range of penalties for a first time violation

of Subsection 464.018(1)(h), Florida Statutes, is from a $250

fine to a $500 fine and probation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding Bertha

Harris guilty of violating Subsection 464.018(1)(h), Florida

Statutes ; imposing an administrative fine of $250 ; and placing

her on probation for one year with terms to be set by the Board

of Nursing.

DONE AND ENTER ED this 18th day of August , 2005 , i n

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

(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 18th day of August , 2005 .

ENDNOTE

1/ Unless otherwise indicated, citations to the Florida

Statutes shall be to the 2003 version.

COPIES FURNISHED :

Patrick L. Butler, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Bertha Harris

1245 Linmoor Circle

Palm Bay, Florida 32905

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypr ess Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dan Coble, RN, PhD, CNAA C, BC

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 3252

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.