16-000595PL Department Of Health, Board Of Nursing vs. Ekemi A. Tinson, C.N.A. Status: Closed Recommended Order on Wednesday, May 4, 2016.

Summary: CNA use of client credit card for personal expenses without client authorization warrants revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 16 - 0595PL

EKEMI A. TINSON, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administra tive hearing in this case was held on March 18,

2016, in Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Shoshana Jean Silver, Esquire

Lo uise Wilhite - St Laurent, Esquire

Amy C. Thorn, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Ekemi A. Tinson, C.N.A.

6620 Livingston Avenue North

St. Petersburg, Florida 33702

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations set forth

in the Administrative Complaint fil ed by the Department of Health

(Petitioner) against Ekemi A. Tinson, C.N.A. (Respondent) , are

correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 11, 2015, the

Petitioner alleged that the Re spondent, a certified nursing

assistant (C.N.A.), violated statutes and rules set forth

therein. The Respondent disputed the allegations and requested

an administrative hearing. The Petitioner forwarded the request

to the Division of Administrative Heari ngs, which scheduled and

conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

three witnesses, and had Exhibits 1 through 10, 12, 14 , and 15

admitted into evidence. The Respondent presented the testimony

of one witness.

A T ranscript of the hearing was filed on April 4, 2016. The

Petitioner filed a Proposed Recommended Order that was considered

in the preparation of this Recommended Order.

FINDING S OF FACT

1. The Petitioner is the state agency charged by statute

with r egulating the practice of nursing in Florida.

2. At all times material to this case, the Respondent was

licensed as a certified nursing assistant in the State of

Florida, holding license number 262882.

3. At all times material to this case, the Respo ndent was

employed as a C.N.A. to provide personal care and assistance to

M.U., an elderly female suffering from dementia and ParkinsonÓs

disease.

4. The Respondent initially provided her services to M.U.

through a company identified as ÐHopewell Home H ealthcare.Ñ

5. Towards the end of 2013, the Respondent began to provide

her services to M.U. by private agreement with J.U., M.U.Ós

husband.

6. During the time of the RespondentÓs employment by J.U.,

J.U. exhibited signs of short - term memory loss. T he Respondent

was aware of the continuing decline in J.U.Ós memory, and on

occasion, accompanied J.U. to physician appointments when his

memory was included in the topics discussed.

7. By the time of the hearing, J.U. had suffered a stroke

resulting in memory loss and an inabi lity to communicate

(ÐdysphasiaÑ ) .

8. M.U. required in exce ss of 20 hours of care per day.

W hen the Respondent began to work for the couple privately, the

Respondent recruited other caretakers to assist in providing the

required care, but the Respondent remained the primary caregiver,

working for approximately 60 hours per week.

9. In addition to the services the Respondent initially

provided to M.U., as time passed , she also helped J.U. in other

ways, performing cooking and l ight household tasks, answering

phone calls, scheduling and keeping appointments, and assisting

in shopping errands and paying bills.

10. The Respondent was paid by the hour for the services

she provided to M.U. and J.U.

11. In December 2013, the Res pondent purchased a car

through a loan that was co - signed by J.U. The loan amount was in

excess of $24,000. As a co - signer, J.U. was responsible for

payment of the loan in the event that the Respondent failed to

make the required installment payments.

12. The Petitioner has implied that the Respondent

influenced and manipulated J.U.Ós participation in the

transaction because J. U. exhibited a decline in short - term memory

abilities. The evidence is insufficient to establish that J.U.

was not competent a nd capable of making financial decisions at

the time of the loan execution.

13. While employed by J.U., the Respondent was authorized

to use a credit card issued to J.U. to make various purchases of

food, medications and household items for the couple.

14. The Respondent also used J.U.Ós credit card, without

authorization, to make various personal purchases and to pay her

own car insurance and cable TV bills.

15. Beginning in February 2014, S.U., the son of M.U and

J.U., assumed powers of attorney for his parents.

16. In February 2015, S.U. became aware that the monthly

amount of charges routinely made to J.U.Ós credit card account

had increased. He reviewed the credit card account statements,

and observed charges unrelated to the services being provided by

the Respondent to J.U. and M.U.

17. After speaking with his father about the statements,

S.U. met with the Respondent on February 28, 2015, to discuss the

charges. During the discussion, the Respondent admitted she had

used J.U.Ós credit c ard to pay her personal expenses , but claimed

that J.U. had given her permission to use the cards. She

thereafter provided a check in the amount of $1,060 to repay a

portion of the expenses she had charged to J.U.Ós card.

18. There is no evidence that the Respondent was authorized

by J.U., or by anyone else, to use J.U.Ós credit card to make

personal purchases or to pay her own household bills.

19. The RespondentÓs employment by J.U. and M.U. was

terminated on February 28, 2015.

20. The Respondent charged approximately $19,000 of

personal expenses to J.U.Ós credit card.

21. The Respondent eventually defaulted on the car loan.

The lender has been attempting to collect the net amount due on

the loan of $10,493.83 from J.U.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fl a . Stat. (2014).

23. In this case, the Petitioner is seeking to impose

discipline against the Responden t's license. In order to

prevail, the Petitioner must demonstrate the truthfulness of the

allegations in the Administrative Complaint by clear and

convincing evidence. DepÓt of Banking and Fin. v. Osborne Stern

and Co . , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

24. In order to be "clear and convincing," 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 allegati ons sought to be established." See

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

25. Because the discipline imposed for the violations

addressed herein are penal in nature, the statutes alleged to

have been violated must be strictly con strued in favor of the

licensee. See Breesmen v. DepÓ t of Prof Ól Reg . , B d . of Me d. , 567

So. 2d 469 (Fla. 1st DCA 1990); Farzad v. DepÓ t of Prof Ó l Reg . ,

443 So. 2d 373 (Fla. 1st DCA 1983); Bowling v. Dep Ó t of Ins . , 394

So. 2d 165 (Fla. 1st DCA 1981).

26. Here, the evidence establishes that the Respondent was

authorized to use a credit card belonging to J.U. to pay for

certain expenses related to J.U. and to his wife, and that the

Respondent used the credit card for the authorized purchases.

The evidence also establishes that the Respondent used J.U.Ós

credit card, without authorization, to pay for personal items,

and for car insurance and cable television bills.

27. Although the Respondent did not testify at the hearing,

the Respondent has previously asserted that the expenditures she

charged to J.U.Ós credit card were a ÐloanÑ from him, and that

she intended to pay J.U. back. There is no credible evidence to

support the assertion. There is no credible evidence that J.U.

authorized the Respondent to use his credit card to pay such

expenses.

28. The evidence also establishes that, during the period

of time she provided care to J.U. and his wife, the Respondent

financed the purchase of a vehicle through a loan, and that J.U.

co - signed the loan applic ation that facilitated the RespondentÓs

purchase. While there is evidence that J.U.Ós cognitive ability

was in decline when the Respondent worked for the couple, the

evidence is insufficient to establish that J.U. lacked the

cognitive ability to understan d his participation in the loan

transaction at the time it occurred, or that the Respondent

manipulated J.U. into co - signing the loan documentation.

29. Count I of the Administrative Complaint charges the

Respondent with violating s ection 464.204(1)(b), Florida

Statutes, which provides that the Petitioner may impose

disciplinary sanctions for intentionally violating any provision

of chapters 464 or 456, Florida Statutes, or the rules adopted by

the Board of Nursing. Section 456.072(1)(n) prohibits

Ðexer cising influence on the patient or client for the purpose of

financial gain of the licensee or a third party.Ñ The evidence

is insufficient to establish that the Respondent exercised

influence on the client for the purpose of financial gain.

30. Count II of the Administrative Complaint charges the

Respondent with violating s ect ion 464.204(1)(b) by violating

s ection 456.072(1)(m), which prohibits Ðmaking deceptive, untrue,

or fraudulent representations in or related to the practice of a

profession or emp loying a trick or scheme in or related to the

practice of a profession.Ñ The evidence establishes that

Respondent violated section 456.072(1)(m) by improperly, and

without authorization, utilizing the credit card referenced

herein to pay personal expenses unrelated to the client.

31. Count III of the Administrative Complaint charges the

Respondent with violating s ect ion 464.204(1)(b) by violating

s ection 464.018(1)(h), which subjects a licensee to discipline

for Ðunprofessional conduct, as defined by bo ard rule.Ñ Florida

Administrative Code Rule 64B9 - 8.005(4) defines unprofessional

conduct to include Ðstealing from a patient.Ñ The RespondentÓs

improper and unauthorized use of a clientÓs credit card to pay

personal expenses constitutes stealing from a p atient, an act of

unprofessional conduct , which warrants discipline.

32. Florida Administrative Code Rule 64B9 - 15.009 sets forth

the disciplinary guidelines applicable to this case. The

following recommended penalty is within the referenced guidelines

for the violations established in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommend ed that the Petitioner enter a final o rder

finding the Respondent guilty of the statutory violations set

fort h herein and revoking the RespondentÓs license to practice as

a certified nursing assistant.

DONE AND ENTERED this 4th day of May , 2016 , in Tallahassee,

Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 4th da y of May , 2016 .

COPIES FURNISHED:

Shoshana Jean Silver, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Ekemi A. Tinson, C.N.A.

6620 Livingston Avenue North

St. Petersburg, Florida 33702

Amy C. Thorn, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Louise Wilhite - St Laurent, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 3252

(eServed)

Ms. Jody Bryant Newman, EdD, EdS , Board Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 3252

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.