15-000957PL Department Of Health, Board Of Nursing vs. Tamar Laurent, C.N.A. Status: Closed Recommended Order on Friday, September 11, 2015.

Summary: Respondent, a CNA, stole a patient's cell phone and lied about it, which justified revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 15 - 0957PL

TAMAR LAURENT, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 24, 20 15, a final administrative hearing was held in

this case by video teleconferencing, with sites in Orlando and

Tallahassee, before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Judso n Searcy, Esquire

Ana Margarita Garollo - McDonald, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Tamar Laurent, pro se

1270 Woodman Wa y

Orlando, Florida 32818

STATEMENT OF THE ISSUE

The issue in this case is whether the RespondentÓs license

to practice as a certified nursing assistant should be revoked or

otherwise disciplined based on the charges of unprofessional

conduct by s tealing from a patient.

PRELIMINARY STATEMENT

The Petitioner, Department of Health (DOH), Board of Nursing

(Board) , filed an Administrative Complaint against the

Respondent, Tamar Laurent, charging her with intentionally

violating s ection 464.204(1)(b), Fl orida Statutes (2012), by

engaging in unprofessional conduct under 464.018(1)(h), as

defined by Florida Administrative Code R ule 64B9 - 8.005(4), by

stealing from a patient. (Unless otherwise stated, all statutes

and rules are the versions in effect at the time of the alleged

theft in early 2013). The Respondent requested a hearing, and

the matter was referred to DOAH.

At the DOAH hearing on June 24, 2015, DOH called the

Respondent and four other witnesses who were cross - examined by

the Respondent: Detecti ve David Osso; the patientÓs son,

R.G. III; the floor nurse at Westminster Towers , Rita Burginia ;

and the former director of nursing at Westminster Towers, Nicole

Daigneault. PetitionerÓs Exhibits 1 through 3 were received in

evidence. The Respondent te stified in her case - in - chief after

DOH rested .

The Transcript of the final hearing was filed on August 5,

2015. The parties were given until August 15, 2015, to file

proposed recommended orders. Only DOH has filed a proposed

recommended order, and it has been considered in preparation of

this Recommended Order.

FINDING S OF FACT

1. The Respondent, Tamar Laurent, is a certified nursing

assistant (CNA) in the State of Florida having been issued

license CNA 43605. This is the first time action has been take n

by DOH and the Board to discipline her license.

2. In December 2012 and January 2013, the Respondent was

employed by Westminster Towers. While working at Westminister

Towers , the R espondent was assigned to care for patient R.G.

3. R.G. was given a c ell phone by his son R.G. III. The

Respondent picked up the cell phone , which was lying on the floor

next to R.G.Ós bed , and placed it in the drawer of a nightstand

that was for and contained R.G.Ós personal items. T he Respondent

thou ght the phone belong ed to R.G. One week later , she went back

into the drawer and took the cell phone to give to her son.

4. While visiting his father , R.G. III realized that the

cell phone was missing. R.G. III attempted to find the phone

using family location tracking and looking up the call log. The

information he uncovered was given to the Orlando Police

Department and Westminster Towers .

5. Nicole Daigneault was the director of nursing at the

time of the incident. After receiving the information from

R.G. III, she initiated an internal investigation and reported

the incident as a theft to the Agency for Healthcare

Administration. The internal investigation discovered that the

Respondent and the RespondentÓs son were in possession of the

cell phone . The Respondent contacted Detective Osso of the

Orlando Police Department. During an interview with Detective

Osso, the Respondent admitted to taking R.G.Ós cell phone. A few

days after the interview , the Respondent retrieved the cell phone

from her son and gave it to h er attorney to return to R.G. III.

6. During the hearing , the Respondent maintained that she

did not know the cell phone belonged to R.G. and that she placed

it in his bedside table because she found it next to his bed.

T his contradicted her own testimo ny during the hearing , and in

the RespondentÓs earlier statement to the Orlando Police

Department , that she assumed the cell phone belonged to R.G. when

she put it in his drawer. T he Respondent knew that the cell

phone did not belong to her and that she d id not have a right to

take it.

7. During the hearing, the Respondent stated her

supervisor, Rita, gave her permission to take the cell phone if

she brought it back the next day. However, Rita Burginia, the

supervisor of nursing assistants at the time o f the incident ,

never had a conversation with the Respondent or would n ever

authorize anyone to take the personal property of a patient.

After the testimony of Ms. Burginia, the Respondent then claimed

she spoke to a different supervisor , also named Rita. Nicole

Daigneault can only recall one Rita working at Westminster Towers

at that time, Rita Burginia. In any event, t he Respondent did

not return the cell phone the next day but rather kept it for a

few weeks.

CONCLUSIONS OF LAW

8. Section 464.204(1)(b ), Florida Statutes (2012),

authorizes the board to impose discipline against a license for

intentionally violating any provision of chapter 464, chapter

456, or the rules adopted by the B oard.

9. Intentionally committing unprofessional conduct under

sect ion 464.018 (1) (h) as defined by r ule 64B9 - 8.005(4), by

stealing from a patient, is grounds for license discipline.

10. This is a license discipline case, which placed the

burden on DOH to prove the charges by clear and convincing

evidence. DepÓt of Banki ng & Fin. v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The Supreme Court has stated:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the wi tnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without he sitancy, as to the truth or the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

11. The evidence was clear and convincing that the

Respondent inte ntionally committ ed unprofessional conduct, as

defined by rule 64 B 9 - 8.005(4) , by stealing a cell phone from

patient R.G.

12. Rule 64B9 - 15.009 contains the penalty guidelines for

violations. The range of discipline for a first offense under

section 464.01 8(1)(h) is from a $50 fine, reprimand and

probation, and continuing education, to a denial of certification

or $150 fine, reprimand, suspension followed by probation, or

revocation. Fla. Admin. Code R. 64B9 - 15.009(3)(ii). The

evidence does not support de viat ion from the guidelines based on

mitigating or aggravating factors . Fla. Admin. Code R. 64B9 -

15.009(5) . The RespondentÓs intentional wrongdoing, compounded

by her untruthfulness, justifies revocation.

13. Section 456.072(4) provide s that the Board s hall assess

costs related to the investigation and prosecution, in addition

to other discipline imposed for violating a practice act.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

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

order finding the Respondent guilty as charged ; and revok ing her

license to practice as a certified nursing assistant ; and

assessing costs of investigation and prosecution.

DONE AND ENTERED this 11th day of September , 2015 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of September , 2015 .

COPIES FURNISHED:

Ana Margarita Gargollo - McDonald, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, B in C - 65

Tallahassee, Florida 32399

(eServed)

Tamar Laurent

1270 Woodman Way

Orlando, Florida 32818

Judson Searcy , Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Joe Baker, J r., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

(eServed)

Daniel Hernandez, Interim General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32 399 - 1701

(eServed)

COURTES Y COPY FURNISHED:

Ann - Lynn Denker, PhD, ARNP Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to subm it 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.