07-005095 Hubert Herring vs. Board Of Nursing Status: Closed Recommended Order on Tuesday, April 22, 2008.

Summary: Petitioner did not demonstrate that he should have his nursing license reinstated where he presented no evidence that he can now practice with reasonable skill and safety.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUBERT HERRING, )

)

Petitioner, )

)

vs. ) Case No. 07-5095

)

BOARD OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 4, 2008, a hearing was held by means of

videoconferencing in Tallahassee and Jacksonville, Florida,

pursuant to the authority set forth in Sections 120.569 and

120.57(1), Florida Statutes. The case was considered by Lisa

Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Borden Hallowes, Esquire

4613 Highway 17 South

Orange Park, Florida 32003

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to reinstatement of his

license as a registered nurse in the State of Florida.

PRELIMINARY STATEMENT

On December 27, 2006, the Florida Board of Nursing issued an

Order on Petition for Reinstatement denying Petitioner's request

that his nursing license be reinstated. Petitioner requested a

hearing pursuant to Section 120.57(1), Florida Statutes, and on

November 6, 2007, the matter was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge. The case was originally assigned to Judge Don W. Davis

who noticed it for hearing February 5, 2008. Petitioner

requested a continuance, which was granted, and the case was re-

noticed for hearing March 4, 2008.

On February 28, 2008, the case was re-noticed to be

conducted as a video teleconference hearing on the same date,

i.e. , March 4, 2008, and the case was subsequently transferred to

the undersigned. Because the parties were in different locations

and no pre-hearing order had been entered, there had been no

exchange of exhibits. At hearing, the parties were ordered to

late-file any exhibits by March 11, 2008, and to note any

objection to the admissibility of those exhibits in the proposed

recommended orders. Petitioner testified on his own behalf and

presented the testimony of Karen Clark. The deposition of

Bernard Clark, M.D., was submitted and is admitted into evidence

as Petitioner's Exhibit 1. The Board of Nursing presented no

witnesses. Respondent's Exhibits numbered 1 through 3 were

admitted into evidence.

The transcript was filed March 24, 2008, and by post-hearing

Order the parties were given until April 3, 2008, to file

proposed recommended orders. The responses to any objections to

the admissibility of objections were required to be filed

April 10, 2008. Both Proposed Recommended Orders were timely

filed and have been carefully considered in preparing this

Recommended Order. Although the Board of Nursing objected to the

admissibility of Dr. Bernard's deposition, no response to this

objection was filed.

FINDINGS OF FACT

1. Petitioner is a nurse licensed by the Florida Board of

Nursing, having nursing license number RN 2651872.

2. On June 3, 1998, an Administrative Complaint was filed

against Petitioner in Case No. 1998-00739, asserting that

Petitioner engaged in unprofessional conduct in violation of

Section 464.018(1)(8), Florida Statutes. The parties entered

into a Settlement Agreement and on March 3, 2000, a Final Order

was filed by the Board of Nursing approving the Settlement

Agreement and imposing one year of probation.

3. Pursuant to an Order to Show Cause, Petitioner appeared

before the Board of Nursing in August 2000. By Order filed

September 25, 2000, the Board of Nursing extended Petitioner's

probation for six months and required him to obtain an evaluation

coordinated by the Intervention Project for Nurses (IPN) within

six months.

4. On approximately March 29, 2002, an Administrative

Complaint was filed against Petitioner in Case No. 2001-12091,

alleging that Petitioner had engaged in unprofessional conduct in

violation of Section 464.018(1)(h), Florida Statutes, and

violated the terms of the Final Order in Case No. 1998-00739, in

violation of Section 456.072(1)(q), Florida Statutes.

5. On October 28, 2003, the Board of Nursing entered a

Final Order with respect to Case No. 2001-12091. The Final Order

reprimanded Petitioner; suspended Petitioner's license for a

period of three years; required him to undergo an evaluation

coordinated by PRN; and imposed a $1,000.00 administrative fine.

Specifically, the Final Order provided:

1. The license of Hubert H. Herring is

hereby reprimanded.

2. The licensee, Hubert H. Herring, is

suspended for three (3) years and thereafter

until she/he personally appears before the

Board and can demonstrate the present ability

to engage in the safe practice of nursing.

That demonstration shall include at least an

in-depth psychological evaluation coordinated

through the Intervention Project for Nurses,

with an MMPI or other appropriate testing

from a psychiatrist, psychologist, or other

licensed mental health counselor experienced

in the treatment of addiction. The licensee

shall supply a copy of this Order to the

evaluator. The evaluation must contain

evidence that the evaluator knows of the

reason for referral. The evaluator must

specifically advise this Board that the

licensee is presently able to engage in the

safe practice of nursing or recommend the

conditions under which safe practice could be

attained. The licensee must also submit

prior to appearance before the Board a

reentry plan, proof of continued treatment

and counseling if recommended in the

psychological evaluation, and demonstration

of two years of documented continuous drug

free/alcohol free living. The Board reserves

the right to impose reasonable conditions of

reinstatement at the time the licensee

appears before the Board to demonstrate

her/his present ability to engage in the safe

practice of nursing.

6. Petitioner appealed the Final Order and on January 28,

2005, the First District Court of Appeal affirmed the Final Order

in Case No. 1D03-5084. The mandate of the district court issued

February 15, 2005. See Herring v. Department of Health , 891

So. 2d 1167 (Fla. 1st DCA 2005).

7. No stay of the penalty was sought during the pendency of

the appeal. On November 18, 2004, the Department of Health filed

an Administrative Complaint against Petitioner in Case No. 2004-

01520, alleging a violation of the Final Order in Case No. 2001-

12901. On or about June 29, 2005, the Board of Nursing filed a

Final Order in Case No. 2004-01520, revoking Petitioner's

license. Petitioner appealed this Final Order.

8. The Department of Health requested the First District

Court of Appeal to relinquish jurisdiction to the Board of

Nursing because the penalty of revocation was outside the Board's

disciplinary guidelines. The Court granted the Motion to

Relinquish Jurisdiction and on January 10, 2006, the Board

vacated the Final Order revoking Petitioner's license. On that

same day, the Board issued a new Final Order in Case No. 2004-

01520, that reprimanded Petitioner's license; fined him $250 and

imposed investigative costs of $1,592.21; and suspended

Petitioner's license until he made payment of the fine and costs

of the most recent Final Order and "demonstrates compliance with

each and every term of the Final Order in Case No. 2001-12091

filed on October 28, 2003."

9. On February 20, 2006, the First District Court of Appeal

dismissed the appeal as moot in light of the vacation of the

Final Order being appealed.

10. Petitioner has not been authorized to practice nursing

in the State of Florida since October 28, 2003, some four and a

half years ago. No evidence was presented at hearing to show

whether Petitioner has attended continuing education courses

during this time or taken any steps to keep his nursing skills

and knowledge up to date.

11. Petitioner submitted the deposition of Dr. Bernard, a

physician with whom he worked prior to the suspension of his

license. He also presented the testimony of Karen Clark, the

staffing coordinator at Tandem Rehabilitation Center. Ms. Clark

served in that capacity from December 2002 through August 2004,

and knew Mr. Herring during her employment there. According to

her testimony, Mr. Herring was a nursing supervisor and was still

employed at Tandem when she left in August 2004. She considered

him a good, "team player" employee. 1/ No testimony was

presented, however, regarding his current ability to practice

with reasonable skill and safety.

12. Mr. Herring petitioned the Board for reinstatement of

his license. His re-entry plan "is simple, to go back to work

and provide for my family." He submitted information showing he

had paid his fines, renewed his license, and sought evaluation

from IPN providers. He stated, however, that he could not and

would not be involved with IPN, both because of cost and what he

considered to be "extreme prejudice" to him.

13. Two evaluations from IPN providers were presented to

the Board of Nursing. The first, prepared by Dr. Selah of the

Center for Medicine and Psychiatry, Inc., indicates that in

Dr. Selah's view, Petitioner was not safe to practice nursing

with reasonable skill and safety. The second, prepared by

Dr. Judy Rivenbark, stated that Petitioner would be safe to

practice nursing only if he obtained therapy, entered into and

complied with an IPN contract and demonstrated that he was

current and up to date on his nursing skills. Although

considered by the Board of Nursing, no testimony was presented at

hearing from either professional.

14. The Board considered his request and on December 27,

2006, entered an Order on Petition for Reinstatement denying his

request.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

16. Petitioner is seeking reinstatement of licensure. He

therefore bears the burden of proof to demonstrate, much like an

applicant for licensure, that he has met the requirements for

reinstatement. Espinoza v. Department of Business and

Professional Regulation , 739 So. 2d 1250 (Fla. 3d DCA 1999);

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996); Florida Department of Transportation v. J.W.C. Co. ,

396 So. 2d 778, 786-87 (Fla. 1st DCA 1981).

17. Section 464.018(3), Florida Statutes, provides that the

board shall not reinstate the license of a nurse "until such time

as it is satisfied that such person has complied with all of the

terms and conditions set forth in the final order and that such

person is capable of safely engaging in the practice of nursing."

18. The Board has adopted a rule with respect to the

reinstatement of suspended and revoked licenses. Florida

Administrative Code Rule 64B9-8.011 provides in pertinent part:

(1) When the Board has suspended the license

of a nurse . . . the licensee, by petition,

shall demonstrate to the Board, after

expiration of the time period, compliance

with all terms and conditions of the final

order and must demonstrate the present

ability to engage in the safe practice of

nursing to obtain reinstatement. . . .

(2) In order to demonstrate the present

ability to engage in the safe practice of

nursing, the nurse must submit evidence which

may include:

(a) Completion of continuing education

courses approved by the Board, particularly

if the disciplinary action resulted from

unsafe practice or the nurse has been out of

practice for a number of years.

(b) Participation in nursing programs,

including refresher courses, clinical skills

courses, and any Board approved nursing

education programs leading to licensure in

this state, particularly if the nurse has

been out of practice for a number of years.

(c) Submission of evaluations of mental or

physical examinations by appropriate

professionals which attest to the nurse's

present ability to engage in safe practice or

conditions under which safe practice can be

attained.

(d) Completion of treatment within a program

designed to alleviate alcohol or other

chemical dependencies, including necessary

aftercare measures or a plan for continuation

of such treatment as appropriate. Current

sobriety must be demonstrated.

* * *

(5) If the Board reinstates the license of

the petitioner, it may order reasonable

conditions of probation or participation in

the Intervention Project for Nurses (IPN),

particularly when the nurse has been out of

practice for a number of years, when practice

problems led to the disciplinary action, or

when mental, physical, or substance abuse

problems led to the disciplinary action.

19. Petitioner attempted to use this proceeding as a means

to dispute and criticize the Board's actions in taking discipline

against him. However, the propriety of the Board's prior final

orders is not an issue in this proceeding. The Final Order

suspending his license was affirmed by the District Court of

Appeal, and will not be revisited here. All that is relevant

regarding these prior final orders is whether Petitioner has

demonstrated compliance with the terms contained therein and has

demonstrated that he is presently able to practice with

reasonable skill and safety.

20. Petitioner failed to make such a demonstration. His

"re-entry plan" is no plan at all. It makes no provision for

updating his training and no showing that he currently possesses

the skills necessary for practice. He did not submit an

evaluation indicating that he was safe to practice because the

one evaluator willing to indicate he could practice made that

statement conditioned upon Petitioner's compliance with certain

requirements, including refresher courses and continued therapy,

along with an IPN contract. Petitioner refuses to comply with

the conditions recommended by the evaluator, and presented no

alternative to IPN involvement. Under these circumstances,

Petitioner has failed to demonstrate a basis for reinstatement of

his nursing license.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered denying Petitioner's request

for reinstatement of his nursing license.

DONE AND ENTERED this 22nd day of April, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of April, 2008.

ENDNOTE

1/ If Petitioner was still working as a nursing supervisor in

August 2004, it appears that he would have been practicing nursing

while his license was suspended. This issue is not directly

before me, but does support the ultimate conclusion that

Petitioner was not complying in any fashion with the Final Order

suspending his license.

COPIES FURNISHED:

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Borden R. Hallowes, Esquire

4613 Highway 17 South

Orange Park, Florida 32003

Rick Garcia, Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Patricia Dittman, Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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

i s s u e t h e f i n a l o r d e r i n t h i s c a s e .