16-006421PL Department Of Health, Board Of Nursing vs. Brandon Young, C.N.A. Status: Closed Recommended Order on Thursday, January 5, 2017.

Summary: Petitioner failed to prove, by clear and convincing evidence, that Respondent committed sexual misconduct against a patient. The Administrative Complaint should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D EPARTMENT OF HEALTH,

BOARD OF NURSING ,

Petitioner,

vs. Case No. 1 6 - 6421 PL

BRANDON YOUNG, C.N.A. ,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was heard o n November 30, 2016 , in Jacksonville,

Florida, before E. Gary Early , an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brynna J. Ross , Esquire

Angela Chiang, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Edwin A . Bayó, Esquire

William M. Furlow, Esquire

Paul Drake, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

ST ATEMENT OF THE ISSUE S

The issues to be determined are w hether Respondent

committed sexual misconduct against a patient , in violation of

sections 464.204(1)(b) and 456.072(1)(v) , Florida Statutes, as

alleged in the Administrative Complaint and, if so, the

appropriate penalty.

PRELIMINARY STATEMENT

On October 5 , 2016 , Petitioner , Departme nt of Health

(Department or Petitioner ) , issued a n Administrative Complaint

against Respondent , Brandon Young (Respondent) , a certified

nursing assistant ( CNA) . The complaint charged that Respondent

engaged in sexual misconduct with a patient in violation of

sections 464.204(1)(b) and 456.072(1)(v) .

On or about October 10, 2016 , Respondent timely filed a

Petition for Hearing Involving Disputed Issues of Material Fact

in which he disputed material facts alleged in the

Administrative C omplaint and requested an administrative

hearing. On October 27, 2016, Respondent filed a n Amended

Petition for Hearing Involving Disputed Issues of Material Fact

and Demand for Immediate Administrative Hearing.

On November 1, 2016, the petition s were r eferred to the

Division of Administrative Hearings. A scheduling conference

was held by teleconference, and a final hearing date of

November 30, 2016 , was agreed upon by the parties.

On November 29, 2016 , the parties filed their Joint

Prehearing Stipulat ion (JPS) , which contained 27 stipulations

of fact, each of which , unless conflicting with more persuasive

testimonial evidence, is adopted and incorporated herein. The

JP S contained an additional 11 facts that were not disputed,

but for which the Department maintained a relevance objection.

Those facts are accepted, and will be given the weight deemed

appropriate.

The final hearing was convened on November 30, 2016 , as

scheduled.

A t hearing, th e Department offered the testimony of M.C.,

the victim of RespondentÓs alleged sexual misconduct .

Department Exhibit 1, consisting of page 12 of 21 of the

exhibit identified in the JPS as Department Exhibit 1, and

Department Exhibit 11, consisting of page 16 of M.C.Ós

deposition, were received in evidence. Department Exhibit 11

was offered in lieu of recalling M.C. for rebuttal and , by

stipulation, the deposition excerpt has been considered and

given the same weight as though M.C. testified in person on

r ebuttal.

Respondent testified on h is own behalf , and offered the

testimony of Matthew Graham, risk manager for St. VincentÓs

Medical Center (St. VincentÓs or the hospital) , and Michele

Holt , an assistant nurse manager at St. VincentÓs .

Respondent Ós Exhibit 2 was received in evidence . Respondent

proffered the testimony of Jazmine Brin , a C N A employed by

St. VincentÓs, which was segregated within the transcript, and

not considered by the undersigned.

The one - volume final hearing T ranscript was filed on

December 14, 2016 . Both parties timely filed P roposed

R ecommended O rder s that were considered in preparation of this

Recommended Order.

The actions that form the basis for the Administrative

Complaint occurred on May 21, 2016 . This proceeding is

governed by the law in effect at the time of the commission of

the acts alleged to warrant discipline. See McCloskey v.

DepÓt of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013).

Thus, references to statutes are to Florida Statutes (201 5 ),

unless otherwise noted.

FINDINGS OF FACT

1. The Department of Health, Board of Nursing , is the

state agency charged with regulating the practice of nursing ,

including nursing assistants, pursuant to section 20 .43 , Florida

Statutes, and chapters 456 and 4 64 .

2. At all times material to this proceeding, Respondent

was a CNA in the s tate of Florida, holding certificate number

CNA 275789 .

3. RespondentÓs current address of record is 2 049 Hunters

Trace Circle, Middleburg, Florida 32068 .

4 . Respondent has worked at St. VincentÓs since April

2015. He started as a security officer. In December 2015, upon

receiving his certification as a nursing assistant, he began

work as a patient care technician (PCT). Respondent has not

previously been subject to discipline by the Department .

5 . Prior to May 2 1 , 2016, M.C. was admitted to

St. VincentÓs . She had difficulty breathing, and ultimately had

a new stent put in.

6 . M.C. lives in a n assisted living facility . At the

hearing, she could not remember its name or address .

7 . Respondent was not on duty at St. VincentÓs on Friday,

May 20, 2016. He did work there on Saturday, May 21, 2016. The

preponderance of the evidence indicates that the alleged

incident described herein occurred on May 2 1, 2016.

8 . Upon entering M.C.Ós room on May 21, 2016, Respondent

smelled urine . He asked M.C. if she had wet herself, and she

replied in the affirmative. Although M.C. was able to turn

herself in bed, and could use the bedside commode with

assistance, she was not able to clean herself . 1 / Respondent

determined that he would have to provide her with routine

perianal care (pericare) .

9 . Pericare is the washing of the genitals and anal area.

Pericare for female patients involves having the patient open

her legs , whereupon the health care provider clean s the outer

part of her vagina , and then cleans the genital area from front

to back. Pericare can be done during a bath or as a separate

procedure. Depending on the extent of the incontinent incident ,

cleaning can extend beyond the immediate genital area. Pericare

prevents breakdown of the perianal area, itching, burning, odor,

and infections.

10 . St. VincentÓs has no policy restricting the gender of

PCT s providing pericare, and there was no viola tion of

established protocol in having Respondent provide pericare for a

female patient.

11 . Respondent got cleaning supplies, wipes, clean linens

and a gown, washed his hands with soap, and put on gloves.

12 . Respondent first performed some general c leaning of

M.C.Ós legs , arms, and back . Respondent then performed pericare

by having M.C. turn on her side , when he cleaned her buttocks

from front to back, and then having her roll over to clean her

front , again wiping her. Respondent stated that he had no

conversation with M.C. during this care.

13 . Respondent testified that the door to M.C.Ós room

remained cracked open during the time he was p roviding pericare

to M.C. His testimony was credible, and is accepted.

14 . Respondent stripped the bed linens, made the bed with

fresh linens, and provided M.C. with a fresh gown.

15 . Prior to May 21, 2016, M.C. had been cleaned by female

hospital staff. She had never before been cleaned by male

hospital staff, an occurrence that, during her testimony,

appeared to bother her independent of any alleged misdeeds.

16 . On May 24, 2016, case manager Kendra Crossway and

Robin Copeland, P.A., went to M.C.Ós room to discuss her

d ischarge. During that meeting, M.C. first alleged RespondentÓs

se xual misconduct.

17 . At the hearing, M.C. testified that she reported the

incident Ð[t]he next day.Ñ The preponderance of the evidence

indicates that the report was made on May 24, 2016, three days

after the alleged incident.

18 . Ms. Crossway reported to Ms. Holt that M.C. had stated

that she would never come to St. VincentÓs again , and that M.C.

further stated that her PCT had fondled her private parts.

19 . Upon being advised of the patient Ós allegation,

Ms. Holt interviewed M.C. regarding the allegation of sexual

misconduct . Ms. Holt was told that Respondent put his fingers

inside of M.C.Ós vagina and then , upon her protest, he said,

"Okay, okay" and left the room. 2 /

20 . Ms. Holt reported her conversation to Mr. Graham a nd

Genevieve Lanouette , who interviewed M.C. around 10:00 or

11:00 a.m. on May 24, 2016. M.C. indicated that Respondent came

to her room on ÐFridayÑ (which would have been May 20, 2016) in

the late afternoon. 3 / M.C. related that Respondent told her that

he was there to clean her up. She advised them that she had

been inappropriately touched on her Ðprivate areasÑ by Ða fat

black man who thought he was funny,Ñ who put his fingers inside

her vagina. Both the hospitalÓs investigative report and the

stipula ted facts indicate that M.C. identified Respondent by

name.

21 . M.C. testified at the hearing that Respondent put two

or three fingers into her vagina, pushing them in as far as they

would go, and held them there for two minutes. She could not

recall if Respondent was using a wipe or gloves.

22 . M.C. testified that she told Respondent to ÐstopÑ when

he put his fingers in her vagina. She testified earlier, in

deposition, that she told him to stop when he first began

cleaning her stom ach area .

23 . Mr. Graham and Ms. Lanouette also interviewed

Respondent. He was asked to describe how he provides pericare

to patients, was asked to describe his care of M.C. , and was

ultimately advised of the allegation made by M.C.

24 . Respondent denied putting his fingers in M.C.Ós

vagina, or otherwise acting in any way inappropriately, both

during the investigation and at the hearing.

25 . Respondent was suspended by the hospital on May 24,

2016, pending the outcome of the investigation.

26 . At the conclusion of its internal investigation,

St. VincentÓs determined that Respondent did not engage in

sexual misconduct , and he was reinstated on May 28, 2016 .

Nonetheless, the allegation of sexual misconduct was reported to

the Department of Heal th on June 2, 2016.

C ONCLUSIONS OF LAW

A. Jurisdiction

27 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding . §§ 4 56.073 ( 5 ), 120. 569 , and 120.57(1) , Fl a. Stat.

(201 6 ) .

28 . The Department has authority to investigate and file

administrative complaints charging violations of the laws

governing CNAs . § 456.073, Fla. Stat. (2016).

B. Standards

29 . Section 464.204(1)(b) establishes, as grounds for

which the Board of Nursing may impose disciplinary sanctions ,

Ð[i] ntentionally violating any provision of [chapter 464] ,

chapter 456, or the rules adopted by the board. Ñ

30 . Section 4 56.072(1)(v) provide s that:

The following acts shall constitute grounds

for which the disciplinar y actions specified

in subsection (2) may be taken :

* * *

( v ) Engaging or attempting to engage in

sexual misconduct as defined and prohibited

in s. 456.063(1).

31 . Section 456.063(1) provides that:

Sexual misconduct in the practice of a

health care profession means violation of

the professional relationship through which

the health care practitioner uses such

relationship to engage or attempt to engage

the patient or client, or an immediate

family member, guardian, or representative

of the patient or client in, or to induce or

attempt to induce such person to engage in,

verbal or physical sexual activity outside

the scope of the professional practice of

such health care profession. Sexual

misconduct in the practice of a health care

profession is proh ibited.

32 . A C NA who intentionally inserts his fingers into a

patientÓs vagina while performing pericare would be guilty of

sexual misconduct.

C. Burden and Standard of Proof

33 . The D epartment bears the burden of proving the

specific allegations th at support the charges alleged in the

Administrative Complaint by clear and convincing evidence.

DepÓt of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne

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

510 So. 2d 292 (Fla. 1987); Fox v . Dep't of Health , 994 So. 2d

416 (Fla. 1st DCA 2008); Pou v. DepÓt of Ins. & Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998).

34 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exc lusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof :

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses 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.

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 fi rm belief or

conviction, without hesitancy, as to

the truth of the allegations sought

to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, 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 tric Corp. v. Shuler Bros. ,

590 So. 2d 986, 989 (Fla. 1st DCA 1991) .

35 . A proceeding 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). Penal statutes must be construed in terms of their

literal meaning an d words used by the Legislature may not be

expanded to broaden the application of such statutes. Thus, t he

provisions of law upon which this disciplinary action has been

brought must be strictly construed, with any ambiguity construed

against Petitioner. Elmariah v. DepÓt of Bus. & ProfÓl Reg. ,

574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.

Fish & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931 (Fla. 1st

DCA 2011); Beckett v. DepÓt of Fin. Servs. , 982 So. 2d 94, 100

(Fla. 1st DCA 2008); Whitaker v. DepÓt of Ins. , 680 So. 2d 528,

531 (Fla. 1st DCA 1996); Dyer v. DepÓt of Ins. & Treasurer ,

585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

36 . The allegations of fact set forth in the

Administrative Complaint a re the grounds upon which this

proceeding is predicated. Trevisani v. DepÓt of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. DepÓt of

Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the

scope of this proceeding is properly restricted to those matters

as framed by Petitioner. M.H. v. DepÓt of Child. & Fam. Servs. ,

977 So. 2d 755, 763 (Fla. 2d DCA 2008).

E. Analysis

3 7 . Th e Admini strative Complaint alleges that ÐRespondent

intentionally engaged or attempted to engage Patient M.C. in

sexual misconduct when he inserted his fingers into Patient

M.C.'s vagina.Ñ

3 8 . The evidence in this case consisted almost entirely of

the statements of the two primary actors - - M.C. and Respondent.

There were no other witnesses, and no physical evidence to

substantiate the claim. The alleged act was not reported until

several days after it occurred, despite numerous intervening

opportunities in whi ch M.C. was with hospital staff outside of

the presence of Respondent. The initial report was that the

alleged incident occurred on a day that Respondent was not on

duty - - a detail not suggesting that Respondent did not provide

pericare to M.C., b ut sugg esting a degree of imprecision in

M.C.Ós memory . Though not dramatic, there were inconsistencies

in M.C.Ós description of the incident over time. In particular,

in her discussion with Ms. Holt, M.C. described an incident

shorter in duration , and more possible of being the result of a

misperception of normal pericare , 4 / than the incident described

at hearing . 5/ Although M.C. seemed credible , so was Respondent.

There was nothing in RespondentÓs deportment at the hearing to

suggest evasiveness or prevar ication.

39 . As indicated above, the burden on the Department to

prove the allegations of the Administrative Complaint is fairly

high. In light of the complete record, t he evidence adduced in

this case was not clear and convincing that Respondent commit ted

the act alleged in the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Nursing, enter a final order dismissing the Administrative

Com plaint against Respondent, Brandon Young , C.N.A .

DONE AND ENTERED this 5th day of January, 2017 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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

t his 5th day of January, 2017 .

ENDNOTES

1/ Although M.C. indicated that she could clean hers elf at home,

she acknowledged that during stays in the hospital, hospital

staff cleans her, stating Ð[t]here's a difference between the

hospital and home.Ñ

2 / The statements made by M.C. to various hospital staff,

including Ms. Crossway, Ms. Holt , and Mr. Graham, are recognized

as being out - of - court statements. However, they are not recited

here for the truth of the matters asserted, but are rather set

forth as comparisons with her testimony at hearing to determine

whether the facts were distinctl y remembered , and whether the

complainant exhibited any degree of confusion as to the facts in

issue .

3 / As indicated previously, Re spondent was not on duty on

May 20, 2016.

4/ Tr. 94: 22 - 95:5.

5/ Tr. 56:23 - 57:9.

COPIES FURNISHED :

Edwin A. Bayó, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Brynna J. Ross, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Paul Drake, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

William M. Furlow, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Angela Chiang, Esquire

Pro secution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C02

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

(eServed)

Jody Bryant Newman, EdD, EdS

Board Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C02

Tallahassee, Florida 32399

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.