17-001249PL Department Of Health, Board Of Nursing vs. Lannette Thompson, C.N.A. Status: Closed Recommended Order on Thursday, May 18, 2017.

Summary: Respondent's license as a C.N.A. should be suspended and a fine imposed due to her inability to serve patients with necessary skill based upon her drug and alcohol addiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 17 - 1249PL

LANNETTE THOMPSON, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hea ring was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (Division), on April 10 , 201 7 , by video

teleconference at sites located in St. Petersburg and

Tallahassee, Florida.

APPEARANCES

For P etitioner: Rob F. Summers, Esquire

Lindsey H. Frost, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3 265

For Respondent: Lannette Thompson, C.N.A. , pro se

4718 9th Avenue South

St. Petersburg, Florida 33711

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent violated

s ection 464.204(1)(b), Florida S tatutes, by intentionally

violating section 456.072(1)(z), Florida Statutes, due to being

unable to practice as a nursing assistant with reasonable skill

and safety to patients by reason of illness or use of alcohol,

drugs, narcotics, or chemicals or any o ther type of material or

as a result of any mental or physical condition; and , if so, what

penalty shall be imposed.

PRELIMINARY STATEMENT

Petitioner filed its one - count Administrative Complaint

against Respondent on November 1, 2016, with the Board of

N ursing . Respondent filed a request for a hearing involving

disputed issues of material fact on January 10, 2017 . The matter

was referred to the Division on February 23, 2017 . The matter

was assigned to A dministrative L aw J udge J. Lawrence Johnston to

pr eside over this matter.

On February 28, 2017 , a Joint Response to the Initial

Order was filed, and this matter was set for hearing by video

teleconference on April 10, 2017 , at sites located in

St. Petersburg and Tallahassee , Florida .

On March 3, 2017, t his matter was transferred to the

un der signed to conduct the final hearing.

At the final hearing, Petitioner presented the testimony of

Officer Michael F. Karayianes, St. Petersburg Police Department

(SPPD) ; and offered Exhibits 1 through 16 , all of which were

admitted into evidence. These exhibits included the depositions

taken in lieu of live testimony of Dr. Lawrence S. Wilson, an

expert in addiction medicine , and SPPD Officer Daniel E.

LÓEsperance. Respondent testified on her own behalf and

presented the testimony of Charles Pettis, Candace Thompson, and

Jakayla Hudson ; and offered Exhibits 1 through 4 , all of which

were admitted into evidence.

The Transcript of the proceedings was filed with the

D ivision on April 28 , 2017. Respondent filed her post - hearing

submittal on April 18, 2017. Petitioner filed its Proposed

Recommended Order on May 8, 2017. Both filings have been

carefully considered in the preparation of this Recommended

Order.

References to statutes are to Florida Statutes (20 16 ),

unless otherwise noted.

FINDING S OF FACT

1. Petitioner is the state agency charged with regulating

the practice of nursing assistan ts , pursuant to section 20 .43 ,

and chapters 456, and 464, Florida Statutes.

2. At all times material to the Administrative Compla int,

Respondent was a certified nursing assistant (C.N.A.) in the

State of Florida, having been issued Certificate No. CNA 165217 .

3. Respondent is a convicted felon, having been convicted

in 1988 of the felony offenses of grand theft and forgery. The

conviction constitutes a crime of dishonesty.

4. In 1989, Respondent was convicted of felony possession

of cocaine and sale of cocaine.

5. In 1992, Respondent was convicted of robbery, a felony.

6. In 1998, Respondent was convicted of possession of

coc aine, a felony.

7. Respondent was sentenced and incarcerated in 2003 to a

term of three - and - a - half years. In addition to the numerous

felony charges, Respondent committed multiple misdemeanors over

the past 30 years.

8. In 2007, Respondent applied to be a C.N.A. in Florida.

9. Respondent explained her criminal history in her

application to become a C.N.A. , as follows :

The charges that were committed happen [sic]

at a time in my life when I was living on the

streets. I stole out of stores in order to

ge t clothes to wear and sell to support my

addiction. I use [sic] drugs and alcohol to

escape. I hung around a lot of wrong people

who did drugs and stole for a living. To me

this was normal. I did everything under the

sun in order to get high. My life was very

unmanageable. I wrote checks out of my

motherÓs checking account to purchase drugs

and alcohol.

I unchanging [sic] sex for drugs, so before

long the relationships that I got involved in

boyfriendÓs would dealt [sic] drugs. I would

sell drugs i n order to get the drugs to [sic]

and get enough money to make whomever I was

dating at the time happy [sic].

I have been drug free since 2000. I have

maintained steady employment, and stable

housing. I attend A . A . meeting [sic] on a

regular basis. I h ave successfully completed

Parenting, and Behavioral Healthcare

Technical training classes given by the

Operation PAR Incorporation. I am currently

in my second year of school at St. Petersburg

College in the Human Service Program. With

hopes [sic] of ea rning a [sic] associate

degree in Substance A buse Counseling. I have

positive friends and role models that do not

indulge in any criminal activities or drugs.

I also attend church services, and

participate in church functions. Also, I

have been raising t wo children as a single

parent. In conclusion, I have successfully

completed probation and as well have not

committed any new offenses.

10. Respondent was first licensed as a C.N.A. in the S tate

of Florida in April 2008.

11. On April 24, 2015, Responde nt attended a party where

she consumed alcohol. Early the next morning, SPPD Officer

Daniel LÓEsperance observed a vehicle parked at an odd angle in

the parking lot of a closed gas station. Respondent was asleep

behind the wheel of the vehicle with the k eys in the ignition.

The officer noticed a strong odor of alcohol coming from her

breath , slurred speech, unsteadiness on her feet, and watery,

bloodshot eyes.

12. Officer LÓ E sperance told Respondent to call a friend to

come pick her up because he believ ed she was under the influence

of alcohol or drugs. Respondent could not find her phone and

gave Officer LÓ E sperance consent to look for her phone in the

vehicle.

13. While searching for RespondentÓs phone, Officer

LÓ E sperance found a crumpled up dolla r bill in the driverÓs seat

containing what he believed to be cocaine residue. The officer

arrested Respondent for the felony offense of cocaine possession.

14. On or about April 26, 2016, at approximately

11:15 p.m. , SPPD officers responded to a car acc ident involving

two motor vehicles. Respondent was one of the drivers involved.

She had consumed alcohol prior to the accident.

15. Respondent was wearing black scrubs at the time of the

car accident. She had slurred speech ; glassy, watery, and

bloodsh ot eyes ; and alcohol on her breath. She was unsteady on

her feet and was disoriented. She exhibited further signs of

impairment while participating in the f ield s obriety e xercises.

16. SPPD Officer Michael Karayi a nes arrested Respondent for

driving un der the influence of alcohol or drugs. Respondent

refused to provide a breath sample for alcohol testing.

17. On August 3, 2016, Lawrence S. Wilson, M.D., a

physician specializing in addiction medicine, and hereby found to

be an expert in this field, e valuated Respondent pursuant to

Department o rder. Respondent admitted she first consumed alcohol

at age 15. She reported that in her past she would consume

12 beers in one drinking session, and she would consume

approximately 750m l of liquor every weeken d. She consumed

alcohol approximately once or twice per month in the two to three

months leading up to the evaluation. Respondent reported

consuming a maximum of four alcoholic drinks in one sitting

during this time period. She stated she had most recen tly

consumed alcohol two days prior to her evaluation.

18. Respondent acknowledged to Dr. Wilson that she is an

alcoholic.

19. Respondent acknowledged she first used cocaine at

age 15. She most recently used cocaine two days prior to the

evaluation. Respondent stated that, other than the use of

cocaine two days prior to the evaluation, she had not used

cocaine in approximately 20 to 30 years. She acknowle d ged she

has a problem with cocaine.

20. Respondent told Dr. Wilson that she had not admitted

he rself n or been admitted to any detox facilities, any inpatient

treatment, or any outpatient treatment programs. During the

evaluation and in her testimony at hearing , Respondent claimed to

be in active recovery, attending Alcoholics Anonymous (AA)

meeting s three to five times per week for the past year.

Respondent claimed to have a sponsor and home group. Respondent

chaired meetings , but had never told her story as a speaker.

21. On August 3, 2016, Respondent submitted to toxicology

tests at Dr. Wilson Ós request . The tests were positive for both

cocaine and alcohol. These results, which were professionally

obtained and are deemed credible, were inconsistent with

RespondentÓs reported use of alcohol and cocaine.

22. The toxicology results indicated repetitive and

frequent use of cocaine in the past two to three months . The

toxicology results indicated heavy repeated alcohol use or

binging.

23. RespondentÓs participation in AA has not prevented her

from continuing both alcohol and cocaine use. He r

ÐparticipationÑ in AA, at best, can be described as passive and,

at worst , as embellished or untrue.

24. Dr. Wilson agrees with the latter assessment, calling

RespondentÓs reporting of her alcohol and drug abuse Ðdishonest

and deceptive.Ñ He further concluded that RespondentÓs

minimization and deceptive reporting of her drug and alcohol use

indicated that she was in denial of her alcohol and cocaine use

disorders. Not surprisingly, Dr. Wilson diagnosed Respondent

with severe alcohol use disorder and severe cocaine use disorder.

25. Dr. Wilson recommended Respondent participate in an

Intervention Proj ect for Nurses (IPN) monitoring agreement and

complete an inpatient treatment program for her cocaine use

disorder and alcohol use disorder.

26. Due to RespondentÓs current addictions, Dr. Wilson

concluded that Respondent is not able to practice as a nursing

assistant with the necessary skill and safety to adequately serve

patients. Dr. Wilson stated that his opinion would not change

even if Respondent p articipated in AA meetings multiple times a

week because the RespondentÓs participation in AA is not

effectively treating her addiction disorders. He believes she

needs more intensive treatment due to her disease and addiction

being active. The undersign ed finds Dr. WilsonÓs opinions and

ultimate findings credible and well - substantiated .

27. Respondent has not actively en tered in to a n IPN

monitoring agreement n or has she entered or completed an

inpatient treatment program for her cocaine use disorder a nd

alcohol use disorder.

28. As recently as August 9 , 2016, Respondent submitted a

urine sample for a drug screening as a condition of her criminal

probation. The sample returned positive for cocaine. In order

to have a positive result, the individual t ested must have

consumed cocaine within 48 to 72 hours of submitting the sample.

29. Even the witnesses called by Respondent to testify at

hearing confirmed her alcohol abuse issues. Her sister, Candace

Thomas testified that she had last drunk alcohol with Respondent

a month or two prior to the hearing, and recalled having drinks

with Respondent at least once a week.

30. Another witness called by Respondent, Jakayla Hudson,

testified that RespondentÓs drinking habits were about the same

as they had bee n years earlier, before she had been incarcerated.

31. Re spondent denied the allegations of alcohol and drug

abuse. She claims that Dr. Wilson and Officer s Karayianes and

LÓ E sperance fabricated their testimony to exaggerate the extent

of her impairment.

32. Respondent claims to have last consumed alcohol on or

about August 1, 2016, which is inconsistent with her sisterÓs

testimony at the hearing. She testified that she is not an

alcoholic and does not have a problem with alcohol. RespondentÓs

testimo ny was inconsistent with her statement that alcohol is her

drug of choice, her history of alcohol abuse, her regular

attendance at AA meetings since 2007, and her own previous

statements.

33. When asked if she still used cocaine, Respondent

testified tha t alcohol is her drug of choice . She testified she

ha d not used cocaine in many years, yet a drug test showed she

had ingested cocaine within the past year. When these

conflicting statements are viewed with her history of alcohol and

cocaine abuse, her r egular hosting of AA meetings , regardless of

her active participation in them, since 2007, and her own

previous statements about the frequency of her drinking and

cocaine abuse, the evidence clearly and convincingly strongly

supports her being both an alco hol and cocaine abuser .

34. RespondentÓs criminal history, combined with the

established fact that she has been and c ontinues to suffer from

severe alcohol use disorder and severe cocaine use disorder, both

of which appear to be voluntary , prove she is un able to practice

as a nursing assistant with reasonable skill and safety to

patients .

CONCLUSIONS OF LAW

35 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

36. Chapters 456 and 464 , Florida Statutes, and Florida

Administrative Code Chapter 64B9 - 15 , regulate the practice of

certified nursing assistants.

37. Section 464.204(1)(b) provides:

The following acts constitute grounds for

which the bo ard may impose disciplinary

sanctions as specified in subsection (2) :

* * *

(b) Intentionally violating any provision of

this chapter, c hapter 456, or the rules

adopted by the board .

3 8 . Section 456.072(1)(z) provides:

The following acts constit ute grounds for

which the disciplinary actions specified in

subsection (2) may be taken :

* * *

(z) Being unable to practice [as a nursing

assistant] with reasonable skill and safety

to patients by reason of illness or use of

alcohol, drugs, narcoti cs, chemicals, or any

other type of material or as a result of any

mental or physical condition. . . .

3 9 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature. State

ex rel. Vining v. Fla. Rea l Estate CommÓn , 281 So. 2d 487, 491

(Fla. 1973). Accordingly, to impose such discipline, Petitioner

must prove the allegations in the Administrative Complaint by

clear and convincing evidence. DepÓt of Banking & Fin., Div. of

Sec. & Investor Prot. v. Os borne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996) (citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nair v. DepÓt of Bus. & ProfÓl Reg . , Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995). However, in an

earlier opinion from the Fir st District Court of Appeal, Boedy v.

Dep artment of Prof essional Reg ulation , 463 So. 2d 215 (1985), the

court found that charges against a physician whose ability to

practice with reasonable skill and safety to patients by reason

of illness or use of alcoh ol, drugs, etc., was not penal, and

rejected his claim for fifth - amendment protection against self -

incriminating evidence. Since, as noted below, the Department is

not seeking a revocation in this matter, but a penalty that

allows R espondent to seek the h elp she needs to overcome her

alcohol and drug addictions, the current matter comports with the

holding in Boedy .

40 . What constitutes clear and convincing evidence was

described in Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1989) as follows:

[C]lear 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 t o 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.

4 1 . The Florida Supreme Court later adopted the Slomowitz

courtÓs description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District Court

of Appeal also followed the Slomowitz test, adding the

interpretive comment that Ð[a]lthough this stand ard of proof may

be met where the evidence is in conflict . . . it seems to

preclude the evidence that is ambiguous.Ñ Westinghouse Elec.

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

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

4 2 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor of the one against whom the penalty would be

imposed.Ñ Munch v. DepÓt of ProfÓl Reg . , Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. DepÓt o f

Bus. & ProfÓl Reg . , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training CommÓn , 458 So. 2d 887,

888 (Fla. 5th DCA 1984) (Ð[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.Ñ

(citing State v. Pattishall , 126 So. 147 (Fla. 1930)).

4 3 . The grounds proven in support of the DepartmentÓs

assertion that RespondentÓs license should be disciplined must be

those specifically alleged in the Administrative Complaint. See

e.g. , Trevisani v. DepÓt of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Cottrill v. DepÓt of Ins. , 685 So. 2d 1371 (Fla. 1st DCA

1996); Kinney v. DepÓt of State , 501 So. 2d 129 (Fla. 5th DCA

1987); and Hunter v. DepÓt of ProfÓl Reg . , 458 So. 2d 842 (Fla.

2d DCA 1984). Due process prohibits the De partment from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument, unless those

matters have been tried by consent. See Shore Vill. Prop.

OwnersÓ AssÓn v. DepÓt of Envtl. Prot. , 824 So. 2d 208 , 210 (Fla.

4th DCA 2002); and Delk v. DepÓt of ProfÓl Reg . , 595 So. 2d 966,

967 (Fla. 5th DCA 1992).

4 4 . The Department presented clear and convincing evidence

to establish that Respondent suffers both from severe alcohol use

disorder and severe cocaine use disorder. The Department

presented clear and convincing evidence to establish that

RespondentÓs use of cocaine and alcohol is voluntary.

4 5 . The Department presented clear and convincing evidence

to establish that Respondent is unable to practice as a nursing

assistant with reasonable skill and safety to patients due to her

severe alcohol use disorder and severe cocaine use disorder.

4 6 . Based on the foregoing, the Department presented clear

and convincing evidence that Respondent violated sections

464.204(1)(b) and 456.072(1)(z).

4 7 . The Board may impose the following penalties under

section 456.072(2): suspension or permanent revocation of a

license , restriction of practice of license , imposition of an

administrative fine , issuance of a repriman d or letter of

concern , placement of the licensee on probation for a period of

time , corrective action , and/or require that the practitioner

undergo remedial education. Here, the Department is not seeking

permanent revocation of RespondentÓs license, but offers a

suspension that will allow Respondent to get addi c tions under

control if she chooses to comply.

4 8 . Rule 64B9 - 15.009(3)(ee) further provides that the

Board shall, when it finds a licensee has violated section

456.072(1)(z), impose penalties rangi ng from a $50 fine, IPN

evaluation, and probation , to denial of certification or a

$100 fine, IPN evaluation, and suspension to be followed by a

term of probation.

4 9 . Rule 64B9 - 15.009(5)(b) provides that in applying the

penalty guidelines, the following aggravating and mitigating

circumstances are to be taken into account:

1. The danger to the public.

2. Previous disciplinary action against the

registrant in this or any other jurisdiction.

3. The length of time the registrant has

practiced.

4. The ac tual damage, physical or otherwise,

caused by the violation.

5. The deterrent effect of the penalty

imposed.

6. Any efforts at rehabilitation.

7. Attempts by the registrant to correct or

stop violations, or refusal by the registrant

to correct or stop v iolations.

8. Cost of treatment.

9. Financial hardship.

10. C ost of disciplinary proceedings .

50 . Factors (1 ), ( 5 ), ( 6 ), ( 7 ), ( 8 ) , ( 9 ), and ( 10 ) are

relevant in this case. The evidence and testimony establish that

Respondent, if allowed to practice a s a C.N.A. at this time, is

and would continue to be a danger to the public unless she is

able to commit to getting the help she needs to become alcohol

and drug free. The fact that she fails to acknowle dge her

alcohol and drug issues further supports the danger of her

work ing with persons suffering from illness or disability.

5 1 . The penalty imposed here must be severe enough to send

a message to R espondent that it is time for her to get her life

in order , whether to allow her to work as a C.N.A. in the future

or to hold any gainful employment. Further, the fact that she

has never voluntarily sought rehabilitation through counseling,

inpatient, or outpatient care further aggravates any penalty that

is imposed. Without professional help, Respondent poses a danger

to potential patients she would serve as a C.N.A.

5 2 . Additionally, R espondentÓs criminal history is filled

with serious violations that have resulted in her incarceration ,

as well as her paying fines, being subjected to probation, and

having ma ndatory periodic drug and alcohol testing. None of

these prior criminal behaviors , which have spanned over 30 years ,

support anything other than serious discipline being imposed on

Respondent. Therefore, factors ( 1 ), ( 5 ), ( 6 ), and ( 7 ) are

relevant aggrav ating factors in imposing a penalty against

Respondent.

5 3 . Respondent offered no evidence to mitigate the penalty

the Department seeks to impose . She did not testify she could

not afford the cost of treatment, much of which could be

subsidized or provid ed by the Department or its sister agencies.

Further, although she has hosted AA meetings for years,

Respondent has not benefited from the life - altering help such

meetings can provide, if only she had taken to heart the credo of

AA and made a good faith e ffort to turn her life around.

5 4 . While being unable to work as a C.N.A. would obviously

impair R espondentÓs ability to earn more than as an unlicensed

worker , she presented no evidence to prove she could seek or find

no other work to support her family. Moreover, she has caused

the Department to expend public funds to prosecute this matter

and offered little in the way of a viable defense to her actions.

In fact, the very witnesses she called as Ðher ownÑ testified to

their personal knowledge of the al cohol and drug addictions

Respondent continues to suffer.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a f inal o rder be issued finding that

Respondent violated sections 464.204(1)(b) and 456.072( 1)(z);

imposing a suspension of her license until such time as

Respondent personally appears before the Board and can

demonstrate the present ability to engage in the safe practice of

a nursing assistant, and the demonstration shall include at least

one IP N evaluation, in which the evaluator finds Respondent is

presently able to engage in the safe practice of a nursing

assistant or recommend the conditions under which safe practice

could be attained; requiring compliance with IPN recommendations

and contrac t conditions, if any; requiring the payment of an

administrative fine in the amount of $ 1 50; and awarding costs

incurred in the prosecution of this case to the Department.

DONE AND ENTERED this 18th day of May , 2017 , in Tallahassee,

Leon County, Florida.

S

ROBERT S. COHEN

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

File d with the Clerk of the

Division of Administrative Hearings

this 18th day of May , 2017 .

COPIES FURNISHED:

Rob F. Summers, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Lannette Thompson, C.N.A.

4718 9th Avenue South

St. Petersburg, Florida 33711

Lindsey H. Frost, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Joe Baker, Jr., Exec utive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

(eServed)

Nichole C. Geary , General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServe d)

Jody Bryant Newman, EdD, EdS , Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin D - 02

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from t he 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.