14-002195PL Department Of Health, Board Of Nursing vs. Frankla M. Lafergola, R.N. Status: Closed Recommended Order on Wednesday, September 3, 2014.

Summary: Respondent pleaded to, and was convicted of, crimes which directly relate to the practice of nursing, and he failed timely to report to the nursing board his plea and conviction. It is recommended that his R.N. license be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING ,

Petitioner,

vs. Case No. 1 4 - 2195 PL

FRANKLA M. LAFERGOLA , R . N. ,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by telephone conference on

July 15 , 201 4, at sites in Tallahassee and Blountstown, Florida .

APPEARANCES

For Petitioner: Jodi - Ann V. Livingstone , Esquire

Y olanda Y. Green , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Frankla M. LaFergola , pro se

Calhoun Correctional Institution

19562 Southeast Institution Drive

Blountstown, Florida 32424 - 5156

STATEMENT OF THE ISSUES

The primary issue in this case is w hether Respondent

pleaded no contest to, or was convicted of, crimes which

direc tly relate to the practice of nursing. If so, then it will

be necessary to determine an appropriate penalty for each such

plea or conviction. In addition, a penalty must be formulated

for Respondent's undisputed failures to tell the Board of

N ursing abou t a plea he entered , and a conviction he suffered ,

within 30 days after the respective events .

PRELIMINARY STATEMENT

On January 7, 2013, Petitioner Department of Health issued

an Amended Administrative Complaint against Respondent

Frankla M. LaFergola, R.N . The Department alleged , in Count

One , that Mr. La Fergola had pleaded no contest in 1999 to a

charge of child abuse, and that, in 2008, he had been convicted

of lewd computer solicitation of a child. The Department

alleged that each of these crimes directly relates to the

practice of nursing , and therefore that Mr. LaFergola had

committed the offense defined in section 464.018 (1) (c), Florida

Statutes , which makes it a disciplinable act to enter a plea to,

or be convicted of, such a crime . In Counts Two and Three,

respectively, the Department alleged that Mr. LaFergola had

failed to report the plea and the conviction to the Board of

Nursing within 30 days after each event, thereby twice

committing the disciplinable offense defined identically in

secti on 455.624(1)(w), Florida Statutes (1999) , and section

456.072(1)(x), Florida Statutes (2007) .

Mr. LaFerg ola timely requested a formal hearing, and on

May 13, 2014 , the Department filed the pleadings with the

Division of Administrative Hearings, where a n a dministrative l aw

j udge was assigned to preside in the matter.

The final hearing took place on July 15, 2014, with

Mr. LaFergola appearing by telephone . The Department 's only

witness was Christine F. Gurk, R.N., whose deposition was

admitted in lieu o f live testimony as Petitioner's Exhibit D .

In addition, Petitioner's Exhibits A, B, and C were received in

evidence , without objection . Mr. LaFergola testified on his own

behalf and presented the testimony of Ben D. Taylor, LMHC . He

did not offer any e xhibits.

At hearing, Mr. LaFergola admitted that he had entered the

plea and suffered the conviction alleged in Count One of the

Amended Administrative Complaint, but he denied that either the

plea or the conviction was for a crime which directly relates t o

the practice of nursing. Mr. LaFergola admitted having fail ed

to report his no - contest plea and criminal conviction to the

Board of Nursing, as charged in Counts Two and Three. Th us, all

that remains to be decided with regard to th e se disciplinable

act s is the recommended punishment.

The one - volume final hearing transcript was filed on

July 30, 2014 . Accordingly, p roposed r ecommended o rders were

due, pursuant to the time frame agreed upon at the conclusion of

the hearing, on August 20, 2014. The parti es' respective

p roposed r ecommended o rders , which were timely filed, have been

considered.

FINDINGS OF FACT

1. At all times relevant to this case, Respondent

Frankla M. LaFergola, R.N . ("LaFergola") , was a Florida - licensed

registered nurse , having bee n issued license number RN2915432 .

2. Petitioner Department of Health (the "Department") has

regulatory jurisdiction over registered nurses such as

LaFergola . In particular, the Department is authorized to file

and prosecute an administrative complain t against a nurse , as it

has done in this instance, when a panel of the Board of Nursing

has found that probable cause exists to suspect that the

licensee has committed a disciplinable offense.

3. Exercising its prosecutorial authority, the Department

has charged LaFergola with two such offense s , namely, (1) being

found guilty of , or pleading to, a crime which directly relates

to the practice of nursing or the ability to practice nursing

(two instances); and (2) failing timely to report a conviction

or ple a to the Board of Nursing (two instances).

4 . On September 23, 1999, in the Circuit Court of the

Sevent eenth Judicial Circuit, Broward County, LaFergola was

sentenced to probation with conditions after entering a plea of

no contest to one count of child abuse as defined in section

827.03(1)( b ), Florida Statutes (1998) . The court withheld

adjudication of guilt.

5 . The elements of the crime to which LaFergola pleaded no

contest were defined, in relevant part, as follows:

(1) "Child abuse" means:

* * *

(b) An intentional act that could

reasonably be expected to result in physical

or mental injury to a child ;

* * *

A person who knowingly or willfully abuses a

child without causing great bodily harm,

permanent disability, or permanent

d isfigurement to the child commits a felony

of the third degree, punishable as provided

in s. 775.082, s. 775.083, or s. 775.084.

§ 827.03, Fla. Stat. (1998) .

6 . LaFergola failed to report his no - contest plea to the

Board of Nursing within thirty days aft er entering the plea .

7 . At the time LaFergola pleaded no contest to the charge

of child abuse, section 464.003(3)(a) defined the term "practice

of professional nursing" to mean

the performance of those acts requiring

substantial specialized knowledge, ju dgment,

and nursing skill based upon applied

principles of psychological, biological,

physical, and social sciences which shall

include, but not be limited to:

1. The observation, assessment, nursing

diagnosis, planning, intervention, and

evaluation of c are; health teaching and

counseling of the ill, injured, or infirm;

and the promotion of wellness, maintenance

of health, and prevention of illness of

others .

2. The administration of medications and

treatments as prescribed or authorized by a

duly licen sed practitioner authorized by the

laws of this state to prescribe such

medications and treatments.

3. The supervision and teaching of other

personnel in the theory and performance of

any of the above acts.

(Emphasis added).

8 . There is a negative cor relation between (a) the

commission of a n intentional act that could reasonably be

expected to result in physical or mental injury to a child and ,

e.g., (b) the promotion of wellness, maintenance of health, and

prevention of illness of others . That is, th ere is an inverse

relationship between operations (a) and (b) inasmuch as an act

of child abuse damages another person's health , whereas the

promotion of wellness aims to enhance or restore another

person's health; the performance of one , in short, undoes the

effect of the other. Because both types of action ÏÏ child abuse

and professional nursing ÏÏ affect the health and welfare of

others , albeit in opposite ways, they are logically connected as

diametric behaviors . Consequently, th e crime of child abuse

dir ectly relate s to the practice of nursing.

9 . On March 25, 2008, in the Circuit Court of the

Nineteenth Judicial Circuit, St. Lucie County, a judgment of

conviction was entered against LaFergola, who had been found

guilty by a jury of the crime of soliciti ng a child via computer

to engage in lewd behavior . To secure LaFergola's conviction of

this particular crime, the government proved the following

constituent elements beyond a reasonable doubt:

CERTAIN USES OF COMPUTER SERVICES

PROHIBITED. -- Any person wh o knowingly

utilizes a computer on - line service,

Internet service, or local bulletin board

service to seduce, solicit, lure, or entice,

or attempt to seduce, solicit, lure, or

entice, a child or another person believed

by the person to be a child, to commi t any

illegal act described in chapter 794,

relating to sexual battery; chapter 800,

relating to lewdness and indecent exposure;

or chapter 827, relating to child abuse,

commits a felony of the third degree,

punishable as provided in s. 775.082 , s.

775.083 , or s. 775.084.

§ 847.0135(3), Fla. Stat. (2005) .

10 . LaFergola failed to report to the Board of Nursing,

within 30 days after being convicted, that he had been found

guilty of lewd computer solicitation of a child.

11 . Based on this conviction, the court sentenced

LaFergola to a term of 2 8 .05 months' incarceration, to be

followed by 31 months of Sex Offender Probation. The conditions

of Sex Offender Probation generally prohibited LaFergola from

having contact with or being near children under the a ge of 18,

among other restrictions on his liberty.

12 . The crime of lewd online solicitation of a child

directly relates to the practice of nursing for the same

reasons, previously discussed, that the crime of child abuse

directly rel ates to the practice of nursing. 1 /

Ultimate Factual Determinations

13 . The Department has established by clear and convincing

evidence that LaFergola entered a plea of no contest to a crime

(child abuse) which directly relates to the practice of nursing.

LaFergola is theref ore guilty of the offense defined in section

464.018(1)(c) , Florida Statutes (1999) .

14 . The Department has established by clear and convincing

evidence that LaFergola was found guilty of a crime (lewd online

solicitation of a child) which directly rela tes to the practice

of nursing. LaFergola is therefore guilty of the offense

defined in section 464.018(1)(c), Florida Statutes (2007) .

15 . The Department has established by clear and convincing

evidence that LaFergola failed to report to the Board of

Nursing, within 30 days after the event, that he had entered a

plea of no contest to a charge of child abuse. Consequently,

LaFergola is guilty of the offense defined in section

455.624(1)(w), Florida Statutes (1999) .

16 . The Department has established b y clear and convincing

evidence that LaFergola failed to report to the Board of

Nursing, within 30 days after the event, that he had been found

guilty of lewd online solicitation of a child . For that reason,

LaFergola is guilty of the offense defined in s ection

45 6.072 (1)( x ), Florida Statutes ( 2007 ) .

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuan t to

sections 120.569 and 120.57(1), Florida Statutes (201 4 ) .

18 . A proce eding, 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, the

Department must prove the charges against LaFergola 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 o f Bus. & Prof'l Reg ., Bd. of Med. ,

654 So. 2d 205, 207 (Fla. 1st DCA 1995) .

1 9 . 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 contain "both qualitative and quantitative standards."

The court held that:

clear 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 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, 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. 19 94) . The First District

Court of Appeal 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." We stinghouse Elec. Corp.

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

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

20 . In the Amended Administrative Complaint, the

Department charged LaFergola under section 464.018 (1)(c) , which

at all relevant times provide d in pertinent part as follows:

(1) The following acts shall be grounds for

disciplinary action set forth in this

section:

* * *

(c) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of nursing or to the ability to

practice nursing.

21 . In determining whether a crime directly relates to the

practice of, or ability to practice, nursing, th e analysis

starts , necessarily, with identifying the elements of the crime

to which the licensee pleaded no contest or of which he was

found guilty. These are found in the statutes, where the

legislature has define d the crimes for which perpetrators may b e

prosecuted. If the legal definition of the crime provides a

sufficient basis , in itself, for determining whether a n adequate

nexus exists between the crime and the professional practice ,

then it is not necessary , in making ultim ate findings relating

to guilt, 2 / to examine the licensee's conduct which gave rise to

the conviction or no - contest plea .

22 . Finding the statutory definition s of child abuse and

lewd computer solicitation of a child to be facially sufficient

to resolve the issue s of relatedne ss, the undersigned

considered, but ultimately deemed irrelevant, evidence regarding

the conduct which put LaFergola in cr iminal jeopardy. Thus, it

was unnecessary to make findings of fact about what LaFergola

did that led to his respective arrest s and re sulting no - contest

plea to the charge of child abuse and conviction for lewd online

solicitation of a child .

23 . To ascertain whether a crime directly relates to the

practice of nursing or to t he ability to practice nursing

requires, as the next analytic al step, that the nature of the

professional practice be described. The provisions of chapter

464, which is known as t he Nurse Practice Act, should ordinarily

suffice to establish what professional nursing entails , and in

this case they did . Thus, while the undersigned considered the

expert testimony which the Department elicited about the

practice of nursing, there was ultimately no need to resort to

such evidence in resolving the issues presented.

24 . On ce these two variables ÏÏ the crime and the

profes sional practice ÏÏ are clearly in view, it can be decided

whether the crime "directly relates" to the practice or ability

to practice. An affirmative answer to the question requires

only that there be a close logical connection between the two,

not necessar ily that "the statutory definition of a particular

profession . . . specifically refer to acts involved in the

crime committed" or that the criminal conduct have reflected (or

cast doubt upon) the licensee's technical ability to practice

his profession. S ee, e.g., Doll v. Dep ' t of Health , 969 So. 2d

1103, 1106 (Fla. 1st DCA 2007) . Thus, a licensee can be found

guilty of this administrative offense notwithstanding that he

might be an excellent nurse, or that the commission of the crime

required none of his nursing skills or expertise. Similarly, to

prove a disciplinable act under section 464.018(1)(c) , the

Department need not demonstrate that the licensee's plea or

conviction will impair, restrict, or hinder the licensee's

ability to practice nursing, or r ender him ineffective or

otherwise incapable of performing the professional

responsibilities of a nurse.

25. In this case, the undersigned determined , for reasons

explained above, that sufficient relationships exist between (a)

the respective crimes of child abuse and lewd online

solicitation of a chil d, on one hand, and (b) the practice of

nursing , on the other, to sustain ultimate findings of guilt

under section 464.018(1)(c) . This determination followed from

the undersigned's application of the plain statutory language to

the largely undisputed material facts as an exercise of legal

reasoning. Thus, the expert opinion testimony that the

Department presented ÏÏ to the effect that the crimes at issue

directly relate to the practice of nursing ÏÏ was consid ered but

not relied upon in resolving the legal and factual controversies

at hand .

26. The Department additionally charged LaFergola with

twice failing to report to the Board of Nursing the disposition

of a criminal proceeding. At all relevant times, a licensee

committed a disciplinable offense by:

Failing to report to the board, or the

department if there is no board, in writing

within 30 days after the licensee has been

convicted or found guilty of, or entered a

plea of nolo contendere to, regardless of

adjudication, a crime in any jurisdiction.

Convictions, findings, adjudications, and

pleas entered into prior to the enactment of

this paragraph must be reported in writing

to the board, or department if there is no

board, on or before October 1, 1999.

§ 456.072(1)(x), Fla. Stat. (2007) ; § 455.624(1)(w), Fla. Stat.

(1999) .

27. LaFergola confessed that he had never reported to the

Board of Nursing either his no - contest plea to the charge of

child abuse or his conviction for lewd online solicitation of a

chil d. His guilt as to these administrative charges, therefore,

was never in doubt.

28 . The Board of Nursing imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

Florida Administrative Code Rule 6 4 B 9 - 8.00 6 .

29. For a nurse found guilty of the offense defined in

section 464.018(1)(c), Florida Statutes (1999) , whose crime was

a felony such as child abuse, the penalty range is from " fine of

$ 50 0, referral to IPN, [i.e., t he Intervention Project for

Nurses ,] two ye ars suspension and probation for the duration of

court ordered probation to revocation and $1000 fine . " Fla.

Admin. Code R. 64 B9 - 8.006(3)(f)(1999). 3 /

30 . Having been convicted of lewd online solicitation of a

child, LaFergola is guilty of the offense def ined in section

464.018(1)(c), Florida Statutes (2007) . For first - time

offender s such as LaFergola, 4 / the prescr ibed penalty range for

this offense is from "$250 fine" to " $500 fine and suspension to

be followed by a term of probation . " Fla. Admin. Code R. 6 4 B9 -

8.006(3)(d)(2006).

31 . For the offense of failing timely to report a

conviction or plea to the Board of Nursing, as defined in

section 455.624(1)(w), Florida Statutes (1999) , there was, at

the time LaFergola missed the reporting deadline, no penal ty

guideline in place , in contravention of section 45 5.627, Florida

Statutes (1999) . 5 / The absence of a penalty range means that ,

although LaFergola committed the offense, no penalty can

lawfully be imposed against him therefor . Fernandez v. Dep't of

Hea lth , 82 So. 3d 1202, 1204 - 05 (Fla. 3d DCA 2012) .

32 . For a first offense under section 456.072(1)(x),

Florida Statutes (2007) , which La F ergola committed when he

failed to tell the Board of Nursing ÏÏ within 30 days after the

event ÏÏ that he had been convic t ed of lewd computer solicitation

of a child , the applicable penalty range is from "$250 fine and

probation" to "denial of licensure or revocation." Fla. Admin.

Code R. 6 4 B9 - 8.006(3)(d)(2006).

33 . Rule 6 4 B9 - 8.006 sets forth aggravating and mitigating

cir cumstances , which, if found to exist, may provide grounds to

depart from the disciplinary guidelines. The undersigned does

not find cause to deviate from the guideline s and therefore

recommends that the Board of Nursing impose a penalty that falls

within the recommended range.

34 . The Department proposes that LaFergola's license be

permanently revoked . This penalty is within the guideline s,

except for the qualification that the revocation be permanent .

The undersigned therefore recommends that the Boar d of Nursing

revoke LaFergola's license with out barring him from ever

apply ing for a new license . The undersigned further recommends

the imposition of a $1,500 fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order finding LaFergola guilty of the offenses charged in the

Amended Administrative Complaint. It is further RECOMMENDED

that the Board of Nursing revoke LaFergola's license , thereby

denying him the right to practice nursing in the state of

Florida unless he obtains a new license, for which he may not

apply until after the expiration of a period of ineligibility

not exceeding 10 years; and impose an administrative fine of

$1, 5 00.

DONE AND ENTERED this 3 rd day of September , 201 4 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 3rd day of September , 2014.

ENDNOTES

1 / The statutory definition of the term "practice of

professional nursing" remained the same in March 2008 as it had

been nine years earlier when LaFergola pleaded no contest to the

charge of child abuse for which he was placed on probation.

2 / The facts and circumstan ces underlying the conviction or plea

might nevertheless be relevant in determining the appropriate

penalty, should the licensee be found guilty of a disciplinable

offense.

3 / Had LaFergola been found guilty of the crime of child abuse,

instead of plead ing no contest to the charge, he would have been

subject to discipline under § 464.018(1)(d)6., Fla. Stat.

(1999) , which made it an offense to be found guilty of a

"violation of chapter 827, relating to child abuse." For that

administrative offense, the p enalty guideline extended upward to

"denial or revocation if aggravated abuse." Fla. Admin. Code R.

6 4 B9 - 8.006(3)(n)(1999)(emphasis added). "Aggravated child

abuse" was defined as occurring when a person:

(a) Commits aggravated battery on a child;

(b) Willfully tortures, maliciously

punishes, or willfully and unlawfully cages

a child; or

(c) Knowingly or willfully abuses a child

and in so doing causes great bodily harm,

permanent disability, or permanent

disfigurement to the child.

A person who com mits aggravated child abuse

commits a felony of the second degree,

punishable as provided in s. 775.082, s.

775.083, or s. 775.084.

§ 827.03(2), Fla. Stat. (1998) . Aggravated child abuse is

obviously a far more serious crime than that to which LaFergola

pleaded. Because LaFergola was neither charged with nor pleaded

to aggravated child abuse, much less was found guilty of such

crime, he should not be disciplined with revocation under rule

65B9 - 8.006(3)(f), even though revocation is within the penalty

ra nge, for that would be a harsher penalty than rule 65B9 -

8.006(3)(n) prescribed for even worse misconduct.

4 / Although the Department here has charged LaFergola with two

separate violations arising from a no - contest plea and a later,

unrelated conviction, neither violation can be viewed fairly as

a "second offense." This is because, until now, LaFergola has

never been disciplined for an act punishable under

§ 464.018(1)(c) . Each disciplinable event ÏÏ the plea and the

conviction ÏÏ is thus effectively a fir st offense, and each should

be punished as such.

5 / The Department never identified an applicable penalty range

for this offense, and the undersigned was unable to locate one

in the historical rule 6 4 B9 - 8.006 of which official recognition

was taken at t he Department's request.

COPIES FURNISHED :

Jodi - Ann V. Livingstone, Esquire

Yolanda Y. Green, Esqu ire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Frankla M. LaFergola

Calhoun Correctional Institution

19562 Southeast Institution Drive

Blountstown, Florida 32424 - 5156

Joe Baker, Jr. , Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C - 02

Tallahassee, Florida 32399 - 3252

(eServed)

Lavigna A. Kirkpatrick, BS, RN, Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

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 issue the Final Order in this case.