13-000495PL Department Of Health, Board Of Nursing vs. Renea J. Chafe, R.N. Status: Closed Recommended Order on Wednesday, May 22, 2013.

Summary: Petitioner proved by clear and convincing evidence that Respondent violated section 456.072(1)(x), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING , )

)

Petitioner , )

)

vs. ) Case No. 13 - 0495PL

)

RENEA J. CHAFE, R.N. , )

)

Respondent . )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P.

Resavage for final hearing by video teleconference on April 15,

2013, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Matthew G. Witters, Esquire

Joh n Juitt, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Renea J. Chafe, pro se

665 Southeast 20th Avenue, A1A

Deerfield Beach, Florida 33441

STATEMENT OF THE ISSUES

Whether Respondent, a registered nurse, violated section

456.072(1)(x), Florida Statutes, as Petitioner alleges; if so,

whether (and what) disciplinary measures should be taken against

Respondent ' s license.

PRELIMINARY STATEMENT

On December 1 1, 2012, Petitioner, the Department of Health,

issued an Administrative Complaint ( " Complaint " ) against

Respondent, Renea J. Chafe. Respondent timely filed an election

of rights disputing the material facts alleged in the Complaint

and requesting and admi nistrative hearing. On February 11, 2013,

Petitioner referred the matter to the Division of Administrative

Hearings.

Administrative Law Judge John G. Van Laningham was assigned

to the matter and the final hearing was scheduled for April 15,

2013. On Ap ril 10, 2013, this case was transferred to the

undersigned for all further proceedings.

Petitioner was represented by counsel and Respondent

appeared pro se at the final hearing, which went forward as

planned. Petitioner presented the testimony of two w itnesses,

Joe Baker, Jr. and Amie Rice, and Petitioner ' s Exhibits 1 through

4 were admitted. Respondent testified on her own behalf.

Petitioner ' s Rebuttal Exhibit 1 was also admitted.

Post - hearing, on April 22, 2013, Respondent filed a document

styled Submission of Evidence. On April 23, 2013, Petitioner

filed its Response to Respondent ' s Submission of Evidence

( " Petitioner ' s Response " ) requesting an order denying the

admission of Respondent ' s Submission of Evidence. On April 26,

2013, Respondent file d her Objection to Petitioner ' s Response.

Petitioner ' s Response is granted and Respondent ' s Submission of

Evidence is rejected as untimely and irrelevant to the issues in

the instant proceeding.

On April 24, 2013, Respondent filed a document styled

Find ing Orders After Hearing. 1 / The final hearing transcript was

filed on May 1, 2013. Petitioner timely filed a Proposed

Recommended Order. Petitioner ' s Proposed Recommended Order and

Respondent ' s Finding Orders After Hearing have been considered.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged violations.

FINDINGS OF FACT

1. At all times relevant to this case, Respondent was

licensed as a registered nurse in the state of Florida.

2. Petitioner has regulatory jurisdiction over licensed

registered nurses such as Respondent. In particular, Petitioner

is authorized to file and prosecute an administrative complaint

against a registered nurse, as it has done in this instance, when

a p anel of the Board of Nursing ( " Board " ) has found that probable

cause exists to suspect that the nurse has committed a

disciplinable offense.

3. Here, Petitioner alleges that Respondent committed one

such offense. In the Complaint, Petitioner charged R espondent

with the offense defined in section 456.072(1)(x), alleging that

she failed to report in writing to the Board within thirty days a

plea of nolo contendere in one case, and guilty verdicts in

another case.

4. On October 28, 2008, in a case sty led State of Florida

v. Chafe , No. 08 - 024936MM10A, the County Court of the Seventeenth

Judicial Circuit, in and for Broward County, Florida, accepted

Respondent ' s plea of nolo contendere to the single count of

trespass (a misdemeanor) with which she had be en charged.

5. On September 20, 2011, in a case styled State of Florida

v. Chafe , No. 09 - 21502CF10A, in the Circuit Court for the

Seventeenth Judicial Circuit, in and for Broward County, Florida,

Respondent was found guilty by a jury of one count of v iolation

of an injunction (a misdemeanor), and one count of resisting an

officer without violence (a misdemeanor).

6. Respondent did not report to the Board the fact that she

had entered a plea of nolo contendere to trespass in Case

No. 08 - 024936MM10A or that she had been found guilty of violation

of an injunction and resisting an officer without violence in

Case No. 09 - 21502CF10A, as she was legally required to do within

30 days after the respective events.

7. As set forth below, Respondent ' s failur e to report was

established by Petitioner through the absence of reports,

records, or data compilations. Amy Carraway, as custodian of

records for the Division of Medical Quality Assurance, Florida

Department of Health, certified that, having conducted a thorough

search of the Division ' s official records, there is no

information contained within the official file of Respondent

relating to either of the above - referenced cases.

8. Joe Baker, Jr., the Executive Director for the Board,

testified that a lic ensure file contains any and all information

concerning a licensee, including correspondence to and from a

licensee. Mr. Baker credibly testified that, based upon his

review of Respondent ' s file, there is no evidence contained

within the file that Respond ent reported the plea of nolo

contendere or guilty verdicts in writing to the Board or

Petitioner within thirty days of the plea or verdict,

respectively.

9. When the Board receives information that a licensee

desires to self - report a plea or conviction in a criminal case,

the Board forwards that information to the Consumer Services Unit

( " CSU " ) within the Florida Department of Health.

10. Amie Rice, Investigation Manager for the Consumer

Services Unit, explained that when the CSU receives the

inform ation, it is entered into a database, an investigator is

assigned, and the information is tracked by the licensee ' s name,

license number, and other identifying factors. The CSU does not

accept or process self - reporting via telephone.

11. Ms. Rice credi bly testified that upon review of all

sources of information available to CSU, there was no indication

that Respondent had, at any time, self - reported the above -

referen ced plea or guilty verdicts.

12. During the cross - examination by Respondent of Ms. R ice,

Respondent stated that she reported the nolo contender e plea in

writing and via the telephone. Respondent also testified that,

after being released from incarceration, she attempted to report

her conviction by telephone. Respondent ' s testimony is no t

credited.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has personal and

subject matter jurisdiction in this proceeding pursuant to

sections 120.569, and 120.57(1), Florida Statutes.

14. A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature. State

ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491

(Fla. 1973). Accordingly, to impose discipline, Petitioner must

prove the charges against Respondent by clear and convincing

evidence. Dep ' t of Banking & Fin., Div. of Sec. & Investor Prot.

v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34 (Fla. 1996)(citing

Ferris v. Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987)); Nair v.

Dep ' t of Bus. & Prof ' l Reg., Bd. of Med. , 654 So. 2d 205, 207

(Fla. 1st DCA 1995).

15. Regarding the standard of proof, in Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court developed a

" workable definition of clear and convincing evidence " and found

that of necessity such a de finition would need to contain " both

qualitative and quantitative standards. " The Court held that:

[C]lear and convincing evidence requires that

the evidence must be found to be credible; the

facts to which the witnesses testify must be

distinctly rememb ered; the testimony must be

precise and explicit and the witnesses must be

lacking 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.

Id. The Florida Supreme Court later adopted the Slomowitz court ' s

description of clear and convincing evidence. See In re Davey ,

645 So. 2d 398, 404 (Fla. 1994). The First District Court of

Ap peal also has followed the Slomowitz test, adding the

interpretive comment that " [a]lthough this standard of proof may

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

preclude evidence that is ambiguous. " Westinghouse Elec. Corp. v.

Shuler Bros ., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991); rev.

denied , 599 So. 2d 1279 (Fla. 1992)(citations omitted).

16. In the Administrative Complaint, Petitioner charged

Respondent under section 456.072 (1)(x), Florida Statutes, which

states as follows:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(x) Failing to report to the board, or the

department if there is no board, in writing

within 30 days after the license e has been

convicted or found guilty of, or entered a

plea of nolo contendere to, regardless of

adjudication, a crime in any jurisdiction.

17. Respondent failed to report her plea of nolo contendere

and her guilty verdicts to the Board as required. She is

therefore guilty of the offense described in section

456.072(1)(x).

18. The Board of Nursing imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

Florida Administrative Code Rule 64B9 - 8.006. The range of

pena lties for a first offense involving section 456.072(1)(x) is

from a minimum of a $250 fine and probation to a maximum of

revocation. Fla. Admin. Code R. 64B9 - 8.006(3)(ll).

19. Rule 64B9 - 8.006(4)(b) provides that circumstances which

may be considered f or purposes of mitigation or aggravation of

penalty shall include, but are not limited to, the following:

1. The danger to the public.

2. Previous disciplinary action against the

licensee in this or any other jurisdiction.

3. The length of time the licensee has

practiced.

4. The actual damage, physical or otherwise,

caused by the violation.

5. The deterrent effect of the penalty

imposed.

6. Any efforts at rehabilitation.

7. Attempts by the licensee to correct or

stop violations, or refusal by the licensee

to correct or stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinary proceedings.

20. Having considered the potential aggravating and

mitigating factors, the undersigned does not find compelling

reasons to deviate from the guidelines and, therefore, recommends

that the Board of Nursing impose a penalty that falls within the

recommended range.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Nursing enter a final

order finding Respondent guilty of violating section

456.072(1)(x); and imposing the following penalties: a $250 fine

and one year of probation with terms and conditions deemed

appropriate by the Board. 2 /

DONE AND ENTERED this 22nd day of May , 2013 , in Tallahassee,

Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of May , 2013 .

ENDNOTE S

1 / The undersigned interpret s this document as Respondent ' s

Proposed Recommended Order.

2 / Respondent ' s demeanor at the final hearing raises significant

concerns with the undersigned as to whether Respondent would be

able to practice with reasonable skill and safety to patients b y

reason of mental incompetency; however, Respondent ' s competency is

not at issue in the instant case. Accordingly, the undersigned

has not recommended a penalty to address this concern. Similarly,

Petitioner did not charge Respondent in this case with a

disciplinary matter involving impairment, and, therefore,

Petitioner ' s recommendation that Respondent submit to an

evaluation coordinated by the Intervention Project for Nurses

( " IPN " ) is rejected. See Fla. Admin. Code R. 64B9 - 9.006(4).

COPIES FURNIS HED:

Matthew George Witters, Esquire

Department of Health

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32312

Renea Justine Chafe, R.N.

665 Southeast 20th Avenue, A1A

Deerfield Beach, Florida 33441

Jennifer A. Tschetter, General Counsel

Departme nt of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Joe Baker, Jr. , Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 1701

Dr. Ann - Lynn Denker, ARNP, Chair

Board o f Nursing

Department of Healt h

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

t o this Recommended Order should be filed with the agency that

will issue the Final Order in this case.