14-000004PL Department Of Health, Board Of Nursing vs. Darline Sue Peguero, R.N. Status: Closed Recommended Order on Tuesday, April 8, 2014.

Summary: Respondent was terminated from IPN for failure to comply with the terms of her monitoring contract. Recommend suspension until an evaluation is completed and Respondent is deemed fit to return to practice; new monitoring agreement if eval. indicates.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 14 - 0004PL

DARLINE SUE PEGUERO, R.N.,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

before Edward T. Bauer, an Administrative Law Judge of the

Division of Administrative Hearings, on March 5, 2014, by video

teleconference at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner: Matthew G. Witters, Esquire

Ana M. Gargollo - McDonald, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Darline Sue Peguero, pro se

Apartment 11G

1720 Harrison Street

Hollywood, Florida 33020

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committ ed the

violation alleged in the Administrative Complaint and, if so, the

p enalty that should be imposed.

PRELIMINARY STATEMENT

On June 12, 2013, Petitioner, Department of Health

("Department"), filed a one - count Administrative Complaint

("Complaint") again st Respondent, Darline Sue Peguero. In the

Complaint, the Department alleges that Respondent violated

section 456.072(1)(hh), Florida Statutes, in that she was

terminated from a treatment program for impaired practitioners

for failure to comply, without g ood cause, with the terms of her

monitoring contract.

Respondent timely requested a formal hearing to contest the

allegations and, on January 2, 2014, the matter was referred to

the Division of Administrative Hearings ("DOAH") and assigned to

Administrativ e Law Judge John G. Van Laningham. On February 28,

2014, Judge Van Laningham transferred the instant matter to the

undersigned for further proceedings.

As noted above, the final hearing in this matter was held on

March 5, 2014, during which the Department presented the

testimony of six witnesses (Richard Rubin, Dr. Loren Hayes, Linda

Smith, Jean D'Aprix, Patrice Ward, and Respondent) and introduced

eight exhibits into evidence, numbered 1 through 4, 6, 8, 10,

and 11. Respondent testified on her own behalf and introduced

one exhibit.

The final hearing T ranscript was filed with DOAH on

March 25, 2014. Thereafter, the Department timely submitted a

Proposed Recommended Order, which the undersigned has considered

in the preparation of this Recommended Order. Respondent did not

file a proposed recommended order. 1 /

FINDING S OF FACT

1. The Department and the Board of Nursing have regulatory

jurisdiction over licensed nurses such as Respondent. The

Department furnishes investigative services to the Board and is

authorized to file and prosecute an administrative complaint, as

it has done in this instance, when cause exists to suspect that a

licensee has committed one or more disciplinable offenses.

2. On January 5, 1999, the Department issued Respondent

license n umber RN3344322, which authorized her to practice as a

registered nurse in the state of Florida. Respondent's address

of record is 1720 Harrison Street, Apar tment 11G, Hollywood,

Florida.

3. Though the record is less than explicit, it appears

that, in or around July 2011, Respondent was suspected of

misappropriating a small quantity of diazepam, a Schedule IV

controlled substance. Although the administrative charges

stemming from that allegation were ultimately dismissed,

Respondent entered into an advoc acy contract ("Contract") with

the Intervention Project for Nurses ("IPN"), a program 2 / which

contracts with the Board of Nursing to monitor practitioners

struggling with substance abuse issues or other problems.

4. The Contract, which Respondent executed on October 5,

2011, mandated that she abstain from all mood - altering

substances ÏÏ including alcohol ÏÏ for a period of two years; submit

to random toxicology screens; and inform any potential employer

of her participation in IPN. Further, by signing the Con tract,

Respondent acknowledged that she had reviewed the IPN Participant

Manual ("Manual") and would abide by its terms. Significantly,

the Manual provided that, upon a relapse, 3 / Respondent would be

required, as a condition of continued enrollment in IPN , to

refrain from nursing until such time that an IPN - facilitated

evaluation could be performed. 4 /

5. Subsequently, on or about December 20, 2011, Respondent

obtained employment with Wound Technology Center as a

"call - center nurse." In connection with t his position, which

required licensure as a registered nurse, Respondent provided

consultation services to clinicians regarding wound treatment.

6. Thereafter, on January 18, 2012, IPN requested that

Respondent furnish a sample of her urine for testing. The

results, which IPN received on January 24, 2012, revealed the

presence of ethyl glucuronide (a metabolite of ethyl alcohol) and

ethyl sulfate. That very afternoon, Patrice Ward, an IPN case

manager, contacted Respondent by telephone to discuss the

pos itive test result. During the ensuing conversation,

Respondent admitted that she had consumed a glass of wine 5 / with

dinner, at which point Ms. Ward instructed Respondent to

immediately refrain from nursing practice.

7. Regrettably, Respondent failed to comply, without good

cause, with Ms. Ward's directive to refrain from practice;

indeed, the evidence demonstrates that Respondent continued to

perform her regular nursing duties over the next two work days.

Respondent's failure to refrain from nursing was quickly brought

to the attention of IPN's executive director, who, consistent

with the Contract's express provisions, terminated Respondent

from IPN on January 26, 2012.

CONCLUSIONS OF LAW

A. Jurisdiction

8 . DOAH has jurisdiction over the parties and su bject

matter of this cause, pursuant to section 120.57(1), Florida

Statutes.

B. Burden and Standard of Proof

9. This is a disciplinary proceeding in which the

Department seeks to discipline Respondent's nursing license.

Accordingly, the Department must prove the allegations contained

in the Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292, 294 ( Fla. 1987).

10. 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 definition would

need to co ntain "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 remembered; the testimony must

b e 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

al legations 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).

C. The Charge; Penalty

11. In the Complaint, the Depa rtment alleges that

Respondent is in violation of section 456.072(1)(hh), which

provides:

(1) The following acts shall constitute

grounds for which . . . disciplinary actions

. . . may be taken:

* * *

(hh) Being terminated from a treatment

progr am for impaired practitioners , which is

overseen by an impaired practitioner

consultant as described in s. 456.076, for

failure to comply, without good cause, with

the terms of the monitoring or treatment

contract entered into by the licensee, or for

not s uccessfully completing any drug

treatment or alcohol treatment program.

(emphasis added).

12. Based upon the F indings of F act contained herein, the

Department has sustained its burden of proof. As detailed

previously, Respondent was terminated from I PN by virtue of her

failure to abstain from nursing ÏÏ without good cause ÏÏ following

her unauthorized consumption of alcohol. The evidence further

demonstrates, clearly and convincingly, that Respondent's

termination from IPN was consistent with the terms o f her

advocacy contract. Accordingly, Respondent is in violation of

section 456.072(1)(hh).

1 3. Turning to the issue of an appropriate penalty, the

disciplinary guidelines in effect at the time of Respondent's

misconduct (i.e . , January 26, 2012, the date Respondent was

terminated from IPN) provide the following range for a violation

of section 456.072(1)(hh):

Minimum: $250 fine and suspension until

successful completion or receipt of written

confirmation from program that further

treatment is neither req uired nor indicated.

Maximum: Permanent revocation or denial of

licensure.

Fla. Admin. Code R. 64B9 - 8.006(3)(aaa); see also Orasan v. Ag.

for Health Care Admin. , 668 So. 2d 1062, 1063 (Fla. 1st DCA

1996)("[T]he case was properly decided under the disc iplinary

guidelines in effect at the time of the alleged violations.").

14. The Department contends, and the undersigned agrees,

that the appropriate disposition is to suspend Respondent's

nursing license until such time that an IPN - facilitated

evaluati on is completed and Respondent is deemed fit to return to

practice. In the event the evaluation demonstrates the need for

further treatment, Respondent shall enter into a monitoring

agreement with IPN and comply with each of the terms and

conditions set f orth therein. Finally, the undersigned

recommends a waiver of the minimum fine in light of Respondent's

lack of disciplinary history. See Fla. Admin. Code R. 64B9 -

8.006(5)(b)2. (providing that a licensee's disciplinary history

may be considered for purpo ses of mitigation or aggravation).

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)(hh);

suspending Resp ondent's nursing license until such time that an

IPN - facilitated evaluation is completed and Respondent is deemed

fit to return to practice; and ordering Respondent to enter into

a monitoring agreement with IPN, should the IPN - coordinated

evaluation demons trate the need for further treatment.

DONE AND ENTERED this 8th day of April , 2014 , in

Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

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 8th day of April , 2014 .

ENDNOTE S

1 / Unless otherwise noted, a ll statutory and rule references are

to the versions in effect at the time of the alleged misconduct.

2 / IPN is an "impaired practitioner program" pursuant to

section 456.076, Florida Statutes.

3 / The IPN Participant Manual defines "relapse" to include , inter

alia, the use of mood - altering chemicals, including alcohol. See

Pet. Ex. 3, IPN Manual, pp. 26 - 27.

4 / The IPN Participant Manual provides that, upon a first

incident of "material non - compliance" ÏÏ which includes, among

other things, the ingestio n of alcohol ÏÏ the licensee will be

"require[d] . . . to refrain from practice as a condition of

continued enrollment." See Pet. Ex. 3, IPN Manual, p. 29. The

Manual further provides that, if the license e "refuses to refrain

or otherwise fails to comply w ith program requirements, IPN will

immediately refer the matter to the Department." Id.

5 / Respondent's assertion that she did not admit to consuming

alcohol is rejected in favor of the credible and persuasive

testimony of Ms. Ward.

COPIES FURNISHED:

Matthew G. Witters, Esquire

Ana M. Gargollo - McDonald, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Darline Sue Peguero

Apartment 11G

1720 Harrison Street

Hollywood, Florida 33020

Joe Baker, Jr., Executiv e Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

Dr. Ann - Lynn Denker, ARNP, Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

Jenn ifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

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 Re commended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.