18-000504PL Department Of Health, Board Of Nursing vs. Tony L. Mcgee, C.N.A. Status: Closed Recommended Order on Friday, May 25, 2018.

Summary: Respondent engaged in unprofessional conduct by striking a patient, though in self-defense. Under the circumstances, a penalty of probation and a fine was appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 18 - 0504PL

TONY L. MCGEE, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was h eard on April 11, 2018 , by video -

teleconference at sites in Tallahassee and Orlando, Florida,

before E. Gary Early, an Administrative Law Judge assigned by

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristen M. Summers , Esquire

H annah Phillips, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Tony L. McGee, C.N.A., pro se

5713 Ibizan Court

Orlando, Florida 32810

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent engaged

in unprofessional conduct by using force against or striking a

patient, in violation of sections 464.204(1)(b) and

464.018(1)(h), Florida Statutes, and Florida Administrative Code

R ule 64B9 - 8.005, as alleged in the Administrative Complaint ;

and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On September 18, 2017, Petitioner, Department of Health

(Department or Petitioner), issued an Administrative Complaint

against Respondent, Tony M cGee (Respondent), a certified nursing

assistant (CNA). The complaint charged that Respondent engaged

in unprofessional conduct by using force against , or striking ,

J.B., who was a patient at the Darryl Strawberry Recovery Center

in DeLand, Florida.

On or about December 18, 2017, Respondent filed an Election

of Rights disputing the facts alleged in the Administrative

Complaint. The Election of Rights indicated that Respondent

received the Administrative Complaint on December 14, 2017. That

statement w as not disputed by the Department, and the Election of

Rights is found to have been timely filed.

On January 31, 2018, the matter was referred to the Division

of Administrative Hearings ; was set for hearing, to commence on

April 11, 2018 ; and was convene d on that date as scheduled.

At hearing, the Department offered Department Exhibits 1

through 3, which were received in evidence. Department

Exhibits 1 and 2 are discovery responses from Respondent.

Department Exhibit 3 is the transcript of Respondent Ós deposition

taken on March 7, 2018, which includes as exhibits RespondentÓs

Election of Rights, and a video recording of the February 18,

2017 , incident that forms the basis of this proceeding. The

Department offered no witness testimony.

Respondent testified on his own behalf, and offered no

exhibits.

The one - volume final hearing Transcript was filed on May 10,

2018. The Department timely filed a Proposed Recommended Order

that was considered in preparation of this Recommended Order.

Respondent di d not file a post - hearing submittal.

The actions that form the basis for the Administrative

Complaint occurred on February 18, 2017. This proceeding is

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

the acts alleged to warrant disciplin e. See McCloskey v. DepÓt

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

references to statutes and rules are to the versions in effect on

that date, unless otherwise noted.

FINDING S 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 464.

2. At all times material to this proceeding, Respondent was

a CNA in the state of Flor ida, holding certificate number

C NA 286629.

3. RespondentÓs current address of record is 5713 Ibizan

Court, Orlando, Florida 32068.

4. Respondent has practice d as a CNA for approximately

30 years. Except for this incident, Respondent has never been

su bject to discipline against his CNA certification in either New

York or Florida.

5 . Prior to moving to Florida, Respo ndent worked for

22 years at a New York prison psychiatric ward, and at the Nassau

University Health Center, both located in the state of New York.

6 . Upon moving to Florida, Respondent worked as a C NA at

Halifax Health Behavioral Services, and then at Florida Hospital

in the medical/surgical unit.

7 . Respondent is currently employed at Orlando Health. His

duties include working with psychiatric patients, assisting them

with everyday living skills, maintaining the living unit, and

interacting with patients for their care. There was no evidence

as to whether RespondentÓs employment at Orlando Health is as a

CNA. Nonetheless, Res pondent has had no issues during his time

at Orlando Health.

8 . Over the course of his career, Respondent has had

extensive interactions with dangerous and aggressive patients.

That experience required training on de - escalating potentially

violent situ ations. He was instructed to talk to patients ; learn

and know their movements, including eye contact and body

movements ; and keep a safe distance from and not stand directly

in front of patients .

9 . Respondent started working at the Darryl Strawberry

R ecovery Center in DeLand in November 2016. He took the job as a

part - time second job to help pay for his upcoming wedding. His

brother worked at the facility and advised him of the opening.

His duties were to monitor patients, collect data from them, an d

assure a safe and therapeutic environment. Among his duties ,

Respondent was also to serve as a driver, picking up patients

from various places around the state for admission to the

facility, and taking them back to their home cities upon

discharge.

10 . Although Respondent had received de - escalation training

for other jobs, the Darryl Strawberry Recovery Center offered no

such training. There were, according to Respondent, no protocols

provided to staff on how to de - escalate and handle aggressive

patie nts. Had such been provided, then a standard protocol of

having two staff persons involved in an intervention could have

been employed. Without such protocols, Respondent was left to

address the situation described herein as capably and safely as

possibl e.

11 . In December 2016, Respondent picked up J.B., who was

living on the streets of Cocoa Beach, to transport him to the

Darryl Strawberry facility. J.B. suffered from alcohol and drug

addiction. During the ride from Cocoa Beach to DeLand, they

dis cussed J.B.Ós mixed martial arts (MMA) training, J.B.Ós

opinion that bigger guys no longer have a fighting advantage

because MMA fighting has leveled the field, and that J.B.

believed he was able to disarm any combatant and win every fight

in which he is i nvolved. J.B.Ós statements are hearsay, but they

are being recited here not for the truth of the matters asserted,

but to establish RespondentÓs mental state during the

confrontation that followed.

12 . After the transport in December 2016, Respondent ha d no

contact with J.B. until February 18, 201 7 .

13 . On February 18, 2017, Respondent was scheduled to

transport three patients who were being released from the

facility. Two patients were to be transported to Cocoa Beach,

and one to Miami. When Respon dent arrived, there was a

ÐdiscrepancyÑ as to who he was to transport, with there being

talk of adding another patient. He did not know who the patient

was to be, but did notice J.B. lying on a bench at the far side

of a small recreational area.

14 . Res pondentÓs testimony was that J.B. was Ðdope sick,Ñ

having used drugs the previous evening, and that he was Ðback to

the beginning.Ñ He was belligerent, spewing vulgar and racist

epithets , and generally creating a scene. Shortly after

RespondentÓs arrival at the facility, he returned the telephones,

wallets, and property to the patients that he was to be

transporting, items which are normally not allowed on - premises.

Since there was still a delay caused by the debate on J.B.Ós

departure ( i.e. , whether the facility Ðwas essentially kicking

him outÑ for using drugs at the facility ), he had to retrieve the

items, which caused additional issues beyond the scope of this

proceeding.

15 . The incident that forms the basis for the

Administrative Complaint is depicted on a surveillance video.

The video was taken from a fixed position . It depicts the side

of a building, the end of a parking lot, and a small recreational

area with several benches and a cornhole game area. The video of

the incident was grainy, with poor resolution. It had no audio.

Although the video indicated that it covered the period from

10:15 a.m. to 11:15 a.m ., it was only 23 minutes and 6 seconds in

length, with roughly 30 seconds of that time taken up with the

title and a privacy warni ng. The video has unexplained gaps that

occur at critical times, including a tw o - and - a - half minute gap

immediately before the incident (from 10:34:54 a.m. to 10:37:27

a.m.), and a 30 - second gap immediately after the incident (from

10:38:02 a.m. to 10:38:3 3 a.m.).

16 . The beginning of the video at 10:14:56 a.m. shows quite

a few people milling about the building and the recreation area

talking, playing cornhole, and exchanging greetings, hugs, and

handshakes. The crowd is consistent until it beg ins to disperse

starting at around 10:31:50 a.m. By 10:33 :00 a.m., the area is

virtually vacant, with a person sitting alone on one of the

benches on the left side of the recreation area. The video is

too grainy to discern who that person is, or who else might be in

the area. At 10:34:00 a.m., a black male walks out, converses

with another gentleman, sips his drink, and sits on a bench at

the right side of the frame, at which time the two - and - a - half

minute gap occurs. When the video picks back up, the person o n

the right side bench remains, the person on the left side bench

has disappeared, and J.B. can be seen sprawled on a bench near

the rear of the recreation area. Whether the person on the left

side bench and J.B. were one in the same is unknown.

17 . At 10:37:38, J.B. is seen to spring from his bench,

strip off his jacket, and walk quickly towards the building. His

posture and demeanor can only be described as agitated and

aggressive, with chest - thumping followed by outstretched arms.

18 . Respondent is seen walking from the side of the

building. Although he Ðclosed the gapÑ with J.B., his approach

was calm, and towards J.B.Ós side, which was consistent with his

earlier testimony that one should not approach from the front.

RespondentÓs hands were at h is side and were not tensed, nor were

his hands clenched. The reasons for moving toward J.B. were two -

fold -- to continue to talk with him in an effort to de - escalate

the situation, and to move away from the other nearby patients to

minimize the possibili ty of their involvement. He recalled

J.B.Ós statements regarding his MMA training, and was concerned

with J.B. Ðgetting off a punch.Ñ He tried to defuse the

situation, telling J.B., ÐListen, calm down man. You know this

- - this is not going to go anywh ere. ThereÓs better ways to

handle it.Ñ

19 . J.B. turned to face Respondent, head bobbing and

clearly continuing to talk. Respondent testified that J.B. stood

at that time, with fists clenched, and stated ÐIÓm sick of you

fucking niggers.Ñ That actio n first caused Respondent to believe

that he was in danger. RespondentÓs testimony is consistent with

J.B.Ós gesticulations. J.B. moved his head towards Respondent,

and Respondent testified that J.B. then feigned a blow, that

Ð[h]e flinches.Ñ Although i t is difficult to discern on the poor

quality video, RespondentÓs testimony is credible and accepted.

Respondent, in what can best be characterized as a reflexive act

of self - preservation, determined that Ð[n]ow in my head IÓm hit

so I swung, connected.Ñ There is no question that Respondent

struck J.B. more than once in rapid succession. It is this act

that forms the sole basis for the Administrative Complaint.

20 . After the initial blows, the scene was, understandably,

chaotic. J.B. was back on his f eet. At that point, the video

experienced another gap of 30 seconds. When the video picked

back up, Respondent is clearly speaking to J.B., with another

person keeping them separated. Respondent testified that he

Ðcontinued to ask him, you know, ÒPut yo ur hands down. It donÓt

have to go any further. Stop. You know, just relax, relax,

relax.ÓÑ There was no evidence to the contrary, and RespondentÓs

testimony is accepted.

21 . There was testimony as to things that happened in the

following time peri od that Respondent testified were Ðto

de - escalate the whole entire thing.Ñ However, post - incident

actions were not pled as being pertinent to the allegations

warranting discipline.

22 . Respondent has not disputed that he struck J.B. Thus,

the unders igned considers this proceeding as including a

determination of whether RespondentÓs action was defensive and

reactive, and bearing on the severity of the appropriate penalty

within the range established in the penalty guidelines.

23 . Petitioner unders tandably relies on the video of the

event to support its argument. Respondent, in his deposition

testimony, discussed the gaps, the angles, the lack of audio, and

the Ðtrouble viewing.Ñ Those elements highlight the weaknesses

and biases inherent in singl e vantage - point videos. Instead of

reciting the strengths and weaknesses of video evidence, the

undersigned hereby adopts and incorporates the thorough and well -

considered analysis of video evidence set forth in paragraphs 15

through 25 of Administrative Law Judge John G. Van LaninghamÓs

Recommended Order in Indian River County School Board v. Joseph

Nathaniel , Case No. 16 - 0272TTS (Fla. DOAH Jan. 31, 2017; Indian

River Co. Sch. Bd. Feb. 27, 2017). Given the issues with the

video described herein, the unde rsigned has accepted the

description of the events in the testimony of Respondent, whose

deportment and presentation at the hearing gave no suggestion of

evasiveness or prevarication.

24 . Respondent was arrest ed for his role in the

February 18 , 2017 , incident. The charges were dismissed.

25 . Without doubt, Respondent struck J.B. That response

was not one taught in the training Respondent had received in his

other jobs. However, under the circumstances here, there was

little time to react. CNAs are expected to exercise good

judgment and self - restraint when dealing with aggressive and

violent patients and, but for this isolated and extreme incident,

Respondent has done so for roughly 30 years.

26 . Respondent took reasonable measures to de - esca late

J.B.Ós aggressive and violent actions and to separate other

patients from J.B. and himself for the safety of all involved.

RespondentÓs reflexive act when he perceived that J.B.Ós blow was

being struck does not indicate a lack of good judgment or mor al

character necessary to practice as a CNA in a manner that is safe

for patients, but was a defensive act of self - preservation, taken

in legitimate fear and anticipation of assault.

CONCLUSIONS OF LAW

A. Jurisdiction

2 7 . The Division of Administrativ e Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 456.073(5), 120.569, and 120.57(1), Fla. Stat.

(2016).

2 8 . The Department has authority to investigate and file

administrative complaints charging violations of the laws

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

B. Standards

2 9 . 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 4 56, or the rules adopted by the board.Ñ

30 . Section 464.018(1)(h) provides that:

The following acts constitute grounds for a

denial of a license or disciplinary action,

as specified in s. 456.072(2):

* * *

(h) Unprofessional conduct, as defined by

board rule.

3 1 . Rule 64B9 - 8.005 provides, in pertinent part, that

ÐUnprofessional conduct shall include: . . . (13) Using force

against a patient, striking a patient, or throwing objects at a

patient.Ñ

C. Burden a nd Standard of Proof

3 2 . The Department bears the burden of proving the

specific allegations that 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).

3 3 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion 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 qualitat ive 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 con vincing 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 i ssue.

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.

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

am biguous." Westinghouse Elec . Corp. v. Shuler Bros. , 590 So.

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

3 4 . 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 , and words used by the Legislature may not be

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

provisions of law upon which this disciplinary action h as 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).

3 5 . The allegations of fact set forth in the

Administrative Complaint are 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

In s. , 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).

D . Analysis

3 6 . The Admin istrative Complaint alleges that Respondent

used force against a patient, and struck a patient. Respondent

does not deny that he did so, and the video amply supports the

allegation.

3 7 . RespondentÓs description of the event was delivered

directly and consistently. There was nothing in RespondentÓs

deportment at the hearing to suggest evasiveness or

prevarication. His testimony as to the circumstances was

unrefuted.

3 8 . What is clear from the evidence of record is that

Respondent, in attempting to d efuse a volatile, belligerent, and

aggressive patient, came to justifiably fear for his own safety

and potentially that of others nearby and, when reasonably

apprehensive that an assault was imminent, struck the aggressor,

J.B., in an effort to neutralize the threat. Perhaps Respondent

should have approached J.B. differently, or waited for a second

staff person to assist him. However, under the exigencies of

the moment, Respondent tried to defuse the patient on his own.

3 9 . Florida Administrative Cod e Rule 64B9 - 15.009

establishes the disciplinary guidelines applicable to CNAs.

Penalties imposed must be consistent with any disciplinary

guidelines prescribed by rule. See Parrot Heads, Inc. v. DepÓt

of Bus. & ProfÓl Reg. , 741 So.2d 1231, 1233 - 34 (Fla. 5 th DCA

1999).

40 . Subsection (3)(ii) provides that the penalty guideline

for a first offense of Ðintentionally engaging in unprofessional

conduct, as defined in Rule 64B9 - 8.005, F.A.C. (Section

464.018(1)(h), F.S.)Ñ as ranging from a minimum of a $50 fi ne,

reprimand and probation, and continuing education, to a maximum

of denial of certification or a $150 fine, reprimand, suspension

followed by probation, or revocation.

4 1 . Rule 64B9 - 15.009(5)(b) establishes circumstances that

could be considered for purposes of mitigation or aggravation of

penalty, above or below the penalty guidelines. Given the

extremely broad penalty range, deviation is not necessary.

Nonetheless, the record reflects that Respondent has practiced

as a CNA for approximately 30 yea rs without prior disciplinary

action, which would constitute mitigation to the penalty.

4 2 . Section 456.072(4) provides that the Board shall

assess costs related to the investigation and prosecution, in

addition to other discipline imposed for violating a practice

act.

4 3 . The very breadth of the penalty range suggests that,

although the act of striking a patient may be clear cut, the

penalty to be assessed should take the surrounding circumstances

into consideration. The circumstances of this case, as set

forth herein, clearly call for a penalty less than the maximum.

The objective of discouraging conduct can be met in this case

with a penalty consistent with that proposed by the Department

in its PRO of probation for one (1) year, with reasonable

con ditions to be determined by the Board of Nursing, imposing a

$50 fine, and imposing costs of investigation and prosecution.

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: finding that Respondent engaged

in unprofessional conduct under sections 464.204(1)(b) and

464.018(1)(h), as defined by rule 64B 9 - 8.005(13), by

intentionally striking J.B.; imposing a period of probation for

one year with reasonable conditions to be determined by the

Board of Nursing; imposing a fine of $50; and requiring

Respondent to pay the costs related to the investigation and

prosecution.

DONE AND ENTERED this 25th day of May , 2018 , 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

Di vision of Administrative Hearings

this 25th day of May , 2018 .

COPIES FURNISHED:

Kristen M. Summers, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Tony L. McGee, C.N.A.

5713 Ibizan Court

Orlando, Florida 32810

Hannah Phillips, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Joe Baker, Jr., Executive Director

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahass ee, Florida 32399 - 3252

(eServed)

Jody Bryant Newman, EdD, EdS

Department of Health

4052 Bald Cypress Way, Bin D 02

Tallahassee, Florida 32399 - 3252

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions 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.