16-001787PL Department Of Health, Board Of Nursing vs. Raphael Sanders, L.P.N. Status: Closed Recommended Order on Wednesday, July 20, 2016.

Summary: Department of Health proved licensed practical nurse had sex with a patient unforced and forced, and sent her foul texts. RO: revoke.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 16 - 1787PL

RAPHAEL SANDERS, L.P.N.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 27, 20 16, Administrative Law Judge , J. Lawrence

Johnston , held the final hearing in this case by video

teleconference between sites in Tallahassee and Tampa.

APPEARANCES

For Petitioner: Kristen M. Summers, Esquire

Rob F. Summers, Esquire

Louise Wilhite - St Laurent, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Raphael Sanders, L.P.N.

539 82nd Avenue North

St. Petersburg, Florida 33702

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Nursing

should discipline the Respondent on charges set out in an

Adminis trative Complaint filed by the Petitioner.

PRELIMINARY STATEMENT

The Administrative Complaint charges the Respondent with:

Count I, violating section 456.072(1)(v), Florida Statutes

(2015), by engaging or attempting to engage, or inducing or

attempting to induce a patient to engage in, verbal or physical

sexual activity outside the scope of the professional practice

of practical nurses; and, Count II, violating section

464.018(1)(h) by engaging in unprofessional conduct as defined

by board rule, specifical ly Florida Administrative Code Rule

64B9 - 8.005(13) for using force against a patient, and rule 64B9 -

8.005(1) for using abusive, threatening or foul language in

front of a patient or directing suc h language towards a

patient. 1/ The Respondent disputed the allegations and asked for

a hearing under section 120.57(1).

At the hearing, the Petitioner called as witnesses:

patients K.M. and A.M.; Jameson Norton, chief executive officer

of North Tampa Behavioral Health (NTBH); and Tara Giberga,

NTBHÓs risk manage r . The PetitionerÓs Exhibits 1 through 6, 10,

11, and 13 were admitted in evidence. The Respondent testified

and ca lled one witness, Jennifer Vita .

A Transcript of the final hearing was filed on June 27.

The Respondent did not file a proposed recommended order. The

Petitioner filed one that has been considered in the preparation

of this Recommended Order.

FINDING S OF FACT

1. The Respondent is a practical nurse who holds Florida

license PN 5182360. He has held the license for seven to eight

years. He h as worked in mental health counseling facilities

since 2010.

2. On July 1, 2015, the Respondent began working at North

Tampa Behavioral Health (NTBH) doing intake assessments. O n

July 15, he did an assessment on K.M. During the assessment,

the patient r evealed that she was abusing substances and

suffering from anxiety and depression after her boyfriendÓs

death by illegal drug overdose. The Respondent initiated a

personal conversation with the patient and told her that he was

lonely, thought she was phys ically attractive, and would like to

spend time with her after - hours.

3. The Respondent denied that this personal conversation

took place. He also denied asking the patient for personal

contact information, insisting that the patient found his

contact in formation on Facebook and telephoned him. He finally

recanted this denial after being presented with clear evidence

at the final hearing that he texted K.M. right after she left

NTBH that day. It also is clear from the evidence that the

Respondent contin ued to use his cell phone to engage in frequent

text and voice communications with her .

4. The Respondent admitted to one sexual encounter with

K.M. within days of meeting her . According to him, the personal

relationship and sexual encounter was at her i nsistence , and

agreed only because she told him she was not a patient of NTBH.

He admitted that he visited K.M. at her residence and socialized

with her regularly that month, but only had one sexual

encounter. He testified that he did not learn until lat er in

July that K.M. actually was a patient of NTBH. He also went to

on - the - job training on July 29, where he says he learned for the

first time that it was against NTBH policy for him to have any

personal relationship with a patient, much less a sexual

r elationship . He later changed his testimony and admitted he

knew it was wrong for him to have a perso nal relationship with a

patient . He testified that he tried to break off the personal

relationship after July 29 . Nonetheless, he admits that he

continu ed to have a personal relationship with K.M. in July,

August , and September, which included overnight stays in her

residence. He maintained that he did so only to ÐappeaseÑ her

because he was afraid she would jeopardize his job by reporting

their relation ship to his employer if he tried to end it. He

also testified that she badgered him to resume their sexual

relationship, but says he resisted and declined. He says that

their personal relationship, as he described it, continued until

September 23, but on ly because he was afraid she would report it

to his employer, as she threatened to do .

5. The RespondentÓs only corroboration of his version of

his relationship with K.M. was a single cell phone voice message

and the testimony of his current girlfriend, J ennifer Vita, who

had broken up with him by July 15, 2015, but got back together

with him later in the summer. The voice message was from

September 17, 2015, as follows:

Hey, itÓs K.[M.] Trying to clarify whatÓs

going on to let you know that when I sai d I

was done, I was done with my appointment,

which you told me to let you know when I was

done with my appointment. So IÓve called a

hundred million times and you havenÓt picked

up. So I guess you donÓt want to hang out.

Goodbye.

Far from corroboratin g the RespondentÓs version of their

relationship, the message is ambiguous. T he Respondent had no

good explanation why he had no other texts or voice messages to

better corroborate his version of the relationship. Ms. VitaÓs

testimony corroborated parts of the RespondentÓs testimony but

was inconsistent with other parts. For example, she was still

believing and repeating the story he had told her about being

contacted by K.M. on Facebook, even after he had recanted it .

Her knowledge was incomplete , and except for knowing K.M. called

the Respondent repeatedly and spoke loudly on one occasion, was

based on what the Respondent told her, which basically was a

self - serving denial that he was having an ongoing relationship

with K.M.

6. K.M. testified that she and the Respondent dated in

July, August, and September 2015, and their personal

relationship included overnight stays at her residence and sex.

A.M., who was another NTBH patient and a friend of K.M.,

corroborated K.M.Ós testimony. She testified she vi sited K.M.Ós

residence when the Respondent was there in mid - August, which the

Respondent does not deny. Both K.M. and A.M. testified that the

Respondent was in bed upstairs when A.M. arrived. A.M.

testified that the Respondent asked her to get in bed wit h him ,

but she refused and went back downstairs. She said he followed

her and at one point reached around her and grabbed her breast.

She said she moved his hand away and continued on. She said she

left the residence a short time later to get ingredient s for

mimosas for her and K.M. and coffee for the Respondent. She

testified that they then sat and talked and drank mimosas and

coffee on K.M.Ós veranda for a while and later went inside and

were sitting on the living room couch when the Respondent

initia ted sex with K.M. in A.M.Ós presence. K.M.Ós test imony

corroborated the gist of A.M.Ós testimony .

7. T he Respondent denied the testimony of K.M. and A.M.

about what happened that day in August. He attempted to impeach

their testimony by questioning why A.M. would have gone upstairs

to use the bathroom, as she said, since there was a bathroom

downstairs. The attempt at impeachment was not effective , as

there may have been any number of reasons why A.M. chose to go

upstairs .

8. Despite taking the positio n that he wanted to end his

personal relationship with K.M., the Respondent admits that he

socialized with K.M. at a restaurant on September 23, 2015, and

returned to K.M.Ós residence afterwards. He says he went to the

restaurant because she promised she would end the relationship

after they talked there . The Respondent testified that he was

surprised when A.M. appeared at the restaurant and joined them .

9. The women testified that they drove to the restaurant

together in K.M.Ós car with the intention of meeting the

Respondent . They testified that the Respondent expected both

women to be there, that all three were drinking alcoholic

beverages at the restaurant , and that K.M. became inebriated.

The Respondent denied drinking and denied that either of t hem

drank very much . A.M. testified that K.M. drank several

margaritas and was falling - down drunk and in no condition to

drive her car when they left , so A.M. drove them b ack to K.M.Ós

residence. A.M. testified that her friend seemed somewhat

coherent, i n t hat she responded to questions. K.M. testified

that she blacked out and has no recollection of returning to her

residence.

10. The Respondent testified that he drove himself to the

residence because he had to finish his conversation with K.M.

about en ding the relationship, which was interrupted when A.M.

sh owed up and joined them at the restaurant. He said he was

surprised again when A.M. followed them to K.M.Ós residence.

11. A.M. testified that back at the residence, she told

K.M. to sleep off he r intoxication and started to leave when the

Respondent said something to her about them owing him

cigarettes, which she said she would get for him if he followed

her in his car. A.M. testified that the Respondent followed her

to the door, accosted her in the garage, tried to kiss her, and

asked her to return to his residence with him to engage in sex,

using the sex toys he had there. According to her, she said no,

kicked him, and left. She thought he was going to leave also,

but he went back inside.

12 . The Respondent attempted to impeach parts of the

womenÓs testimony by maintaining that A.M. was the last to

arrive at the restaurant. As supposed proof, he questioned how

A.M. could have driven in K.M.Ós car to the restaurant and later

departed from t he residence in her own car since the residential

complex where K.M. lived had restricted , gated access . This

attempt at impeachment made little sense because K .M. logically

could have given A.M. permission to enter the gate as a visitor

before they both dr ove to the restaurant in K.M.Ós car, as they

testified .

13 . The Respondent also maintained that he does not smoke

and that he did not say anything to A.M. about them owing h im

cigarettes. Ms. Vita corroborated his denial of smoking , but it

was not clear she was t alking about tobacco cigarettes . In

addition , it was clear from the evidence that the Respondent was

keeping secret s from her. This attempt by the Respondent to

impeach the testimony of K.M. and A.M. also was not effective.

14 . The Responden t testified that he and K.M. had an

argument after A.M. left the residence on September 23, that he

again tried to break off their relationship, and that K.M.

became furious and threw his cell phone a nd a glass of water at

him. K.M. denied having any reco llection of any of that.

15 . K.M. testified that her next memory was groggily

waking up in pain because the Respondent was having uninvited,

nonconsensual anal sex with her. She testified that she asked

him to stop, but he continued, s aying he was almo st finished.

She says w hen he finished, he left. The Respondent denied any

sexual encounter that day (or on any day after the sexual

encounter he admits ) , much less uninvited, nonconsensual anal

sex.

16 . The next day, K.M. communicated with the Respond ent by

voice phone and text messages. She told him she was in pain and

suffering from rectal bleeding and wanted clarification of what

had occurred the day before since her memory was foggy. The

evidence included a screen shot from her telephone of the

f ollowing text message exchange:

[K.M.] ÐRay i dont recall all that happened

yesterday evening but I know that I am not

comfortable with anal sex. It hurt me very

badly and dont want. You to try it again.

I feel taken advantage of.Ñ

[Respondent] ÐNo problem. But donÓt come

at me like IÓm some faakin rapist and

shit!!Ñ

17 . The Respondent maintains that there were voice

communication s between these texts that alter their apparent

meaning. It is unlikely that t here were any communications

between th e texts. Even if there were, the meaning of the texts

was plain. He was agreeing, no more anal sex, and was trying to

deny that he raped her.

18 . After communicating with the Respondent, K.M. reported

the incident to A.M. and then to NTBH, which fired t he

Respondent for having a personal relationship and sex with a

patient, both violations of its boundary policies. There was no

evidence of any criminal charges being filed against the

Respondent as a result of what happened on September 23 .

However, K.M . filed for and obtained an injunction against the

Respondent because she was afraid of him. The Respondent agreed

to the injunction, and the court enjoined him from having any

contact with K.M.

19 . The testimony of K.M. and A.M. is clear and

unambiguous . The totality of the evidence is clear and

convincing that their testimony is essentially true . The

RespondentÓs contention that they conspired to falsify a story

to ruin him for ending his relationship with K.M. , as he

described it, is rejected as unwo rthy of belief.

CONCLUSIONS OF LAW

20 . The Department of Health, Board of Nursing, regulates

the nursing professions in Florida.

21 . The Administrative Complaint in this case charges the

Respondent with: Count I, violating section 456.072(1)(v),

Flor ida Statutes (2015), by engaging or attempting to engage, or

inducing or attempting to induce a patient to engage in, verbal

or physical sexual activity outside the scope of the

professional practice of practical nurses; and, Count II,

violating section 46 4.018(1)(h) by engaging in unprofessional

conduct as defined by board rule, specifically Florida

Administrative Code Rule 64B9 - 8.005(13) for using force against

a patient, and rule 64B9 - 8.005(1) for using abusive, threatening

or foul language in front of a patient or directing such

language towards a patient. (The current rule 64B9 - 8.005 was

last revised on April 9, 2014, and is the applicable version.)

22 . Disciplinary proceedings are considered to be penal in

nature. In prosecuting a disciplinary acti on, the prosecutor is

limited to proving the allegations and charges pled in the

administrative complaint. Cf. Trevisani v. Dep't of Health , 908

So. 2d 1108 (Fla. 1st DCA 2005); Aldrete v. Dep't of Health, Bd.

of Med. , 879 So. 2d 1244 (Fla. 1st DCA 2004); Ghani v. Dep't of

Health , 714 So. 2d 1113 (Fla. 1st DCA 1998); Willner v. Dep't of

Prof'l Reg., Bd. of Med. , 563 So. 2d 805 (Fla. 1st DCA 1990).

23 . In a penal proceeding, the prosecutor must prove the

allegations and charges by clear and convincing ev idence. Dep't

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

24 . Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme

Court, the standard:

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the w itnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (citing, with

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

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although 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. , 590 So.

2d 986, 989 (Fla. 1991).

25 . Using these standards, the charges in the

Administrative Complaint against the Respondent were proven by

clear and convincing evidence.

26 . The appropriate penalty for the RespondentÓs conduct,

as charged an d proven, is revocation of his license, which is

within the penalty guidelines adopted by the Board of Nursing.

Fla. Admin. Code R. 64B9 - 8.006(3)(v) (Rev. Nov. 19, 2012).

27 . Under section 456.072(4), the Board of Nursing in its

final order shall asse ss costs related to the investigation and

prosecution of the case. Costs to be assessed under the statute

include, but are not limited to, salaries and benefits of

personnel, costs related to the time spent by the attorney and

other personnel working on t he case, and any other expenses

incurred by the Department of Health for this case.

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 the Respondent guilty as charged, revoking his

license, and assessing costs under section 456.072(4).

DONE AND ENTERED this 20th day of July , 2016 , 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 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of July , 20 16 .

ENDNOTE

1/ The statutes alleged to have been violated are in the 2015

Florida Statutes, which also contain the procedural statutes

that govern this proceeding. The rules cited are those in

effect at the times of the alleged violations in 2015.

COPIES FURNISHED:

Raphael Sanders, L.P.N.

539 82nd Avenue North

St. Petersburg, Florida 33702

Kristen M. Summers, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Rob F. Sum mers, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Louise Wilhite - St Laurent, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eSer ved)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 1701

(eServed)

Ms. Jody Bryant Newman, EdD, EdS

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 1701

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written ex ceptions 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.