19-001929PL Department Of Health, Board Of Nursing vs. Katie Elizabeth, R.N. Status: Closed Recommended Order on Wednesday, June 26, 2019.

Summary: Petitioner established that Respondent failed to comply with a lawful order of the Department. Recommend suspension of license until compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D EPARTMENT OF HEALTH,

BOARD OF NURSING ,

Petitioner,

vs. Case No. 1 9 - 1929 PL

KATIE ELIZABETH , R.N. ,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 5, 2019 , a final hearing was held by video

teleconference at locations in Tallahassee and Jacksonville ,

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

assigned by the Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Cynthia Arnold Shaw, Esquire

Christopher A. Jurich , Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, F lorida 32399 - 3265

For Respondent: No appearance.

ST ATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent violated

section 456.072(1)(q), Florida Statutes (2016), as alleged in

the Administrative Complaint , by failing to undergo an

evaluation coordinated by the Intervention Project for Nurses

(IPN) as required by the F inal Order in Case No. 2014 - 1844 3 ;

and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On February 23, 201 8 , Petitioner , Department of Health

(Department or Petitioner ) , issued a n Administrative Complaint

against Respondent , Katie Elizabeth , a registered nurse . The

complaint charged Respondent with violat ing a lawful O rder of

the Board of Nursing in case number 2014 - 18443 by failing to

undergo an evaluation coordinated by the IPN within 60 days of

the date the Final Order in that case was filed , in violation

of s ection 456.07 2(1)(q) .

On April 17, 2018, Respondent filed a Second Election of

Rights in which she disputed material facts a lleged in the

Administrative C omplaint and requested an administrative

hearing. Timeliness of the filing of the Second Election of

Rights was not an issue.

On April 15, 2019 , the petition was referred to DOAH . The

reason for the delay in referring the matter was not explained.

There was no objection to the delay filed by Respondent, and

the issue is otherwise not relevant.

The final hearing was set for June 5, 2019 , and was

convened at 9:00 a.m. as scheduled . Respondent was not in

attendance. After having convened the hearing, it was recessed

until 9:25 a.m. to give Respondent an opportunity to appear or

call in to explain her absence. The hearing was reconvened at

9:25 a.m. Counsel for Petitioner indicat ed that she tried to

call Respondent without success. Thus, the hearing proceeded.

A t hearing, the Department offered the testimony of Jeanne

King, intake manager for the IPN. The Department o ffered

PetitionerÓs Exhibit s 1 through 3 in evidence. Each was

accompanied by affidavits sufficient to allow the exhibits to

be self - authenticating pursuant to section 90.902, Florida

Statutes.

The one - volume final hearing T ranscript was filed on

June 12 , 201 9 . The Department timely filed a P roposed

R ecommende d O rder that w as considered in preparation of this

Recommended Order. Respondent did not file a post - hearing

submission.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCl oskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (201 6 ), 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 in

th e s tate of Florida, pursuant to section 20 .43 , and chapters

456 and 4 64 , Florida Statutes .

2. At all times material to this proceeding, Katie

Elizabeth was a licensed registered nu rse in the s tate of

Florida, holding license number RN 927 8405 .

3. RespondentÓs current address of record is 1311 Pullen

Road , Jacksonville, Florida 322 16 .

4. The IPN is the impaired practitioner program for the

Board of Nursing, pursuant to section 456.076.

5 . On April 12, 2016, Respondent and the Department

executed a Settlement Agreement in Department Case No. 2014 -

18443. In the Settlement Agreement, Respondent agreed to the

following:

Respondent must contact the [IPN] . . .

within THIRTY (30) DAYS of the issuance of

the Final Order. Respondent must, within

SIXTY ( 60) DAYS of the issuance o f he Final

Order, undergo an evaluation coor d inated by

IPN, and comply with any and all terms and

conditio ns imposed by IPN as a result of

s aid evaluation. If the Respondent is not

in need of monitoring or treatment and IPN

is not suitable, no further act ion will be

required.

6 . The Settlement Agreement included the Administrative

Complaint in Department Case No. 2014 - 18443 , which indicated

that Respondent was terminated from a n IPN contract in October

2014 for failing to comply with the terms of her mo nitoring

contract.

7 . The Settlement Agreement was adopted and incorporated

in the DepartmentÓs Final Order on December 21, 2016.

8 . Ms. King testified that Respondent initially contacted

IPN within 30 days of the issuance of the Final Order .

Ms. KingÓs contemporaneous notes of her communications with

Respondent , which were affirmed by Ms. King in her testimony,

demonstra te that Respondent was provided with information

regarding multiple doctors with whom the evaluation could be

scheduled . However , Respondent never presented for an

evaluation.

C ONCLUSIONS OF LAW

A. Jurisdiction

9 . 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 8 ) .

10 . The Department has authority to investigate and file

administrative complaints charging violations of the laws

governing registered nurses . § 456.073, Fla. Stat.

B. Standards

1 1 . Section 4 56 .0 72 (1)( q ) provide s that :

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

( q ) Violating a lawful order of the

department or the board, or failing to

comply with a lawfully issued subpoena of

the department.

C. Burden and Standard of Proof

1 2 . The D epartment 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. & Treas. , 707 So.

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

1 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 p roof :

[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 w ithout

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 i n

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 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 , 42 9 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. 1st DCA 1991).

1 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, t he

provisions of law upon wh ich 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 & W ildlife 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); D yer v. DepÓt of Ins. & Treas. , 585 So.

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

1 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); s ee 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 200 8).

D . Analysis

1 6 . The Department presented clear and convincing evidence

to establish that Respondent was subject to a lawful Final O rder

of the Board of Nursing in case number 2014 - 18443 .

17. The Department presented clear and convincing evidence

to establish that the Final Order was entered as a result of a

Settlement Agreement by which Respondent agreed to undergo an

evaluation coordinated by the IPN, and to comply with

requirements imposed by the IPN as a result of the evaluation .

18. The Depa rtment presented clear and convincing evidence

to establish that Respondent failed to comply with the Final

Order. As such, the Department proved that Respondent violat ed

section 456.072(1)(q), as alleged in the Administrative

Complaint.

E . Penalty

1 9 . Pursuant to section 456.072(2), the Board of Nursing

may impose one or more of the following penalties: suspension

or permanent revocation of a license; restriction of practice of

license; imposition of an administrative fine; issuance of a

reprimand o r letter of concern; placement of the licensee on

probation for a period of time; corrective action; and remedial

education.

20 . Florida Administrative Code Rule 64B9 - 8.006(3)( i )

establishes the range of penalties for a first offense of

s ection 4 56 .0 72 (1 ) ( q ) as being from a $250 fine and compliance

with the terms of prior o rder , to a $500 fine and suspension

until complian ce with the terms of the prior o rder .

21 . Rule 64B9 - 8.006(5)(b) establishes aggravating and

mitigating circumstances to warrant deviation from the

established penalty range. Under the circumstances, deviation

is not warranted. Thus , an evaluation of ag gravating and

mitigating circumstances is not necessary.

RECOMMENDATION

Based on the foregoing Findings of Fact an d Conclusions of

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

Nursing, enter a final order :

a) determining that Respondent violated sections

4 56.072(1)(q) ;

b) imposing a fine of $500;

c) imposing a suspension of license number RN 9 278405

until Respondent is compliant with the terms of the Final Order

in Case No. 2014 - 18443 , including compliance with IPN

recommendations and contract conditions , as required ; and

d ) awarding costs incurred in the prosecution of this case

to the Department.

DONE AND ENTERED this 26th day of June , 201 9 , 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 26th day of June , 201 9 .

COPIES FURNISHED :

Katie Elizabeth, R.N.

1311 Pullen Road

Jacksonville, Florida 32216

Cynthia Arnold Shaw, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Christopher A. Jurich, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

Bin C02

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Kathryn Whitson, MSN, RN

Board of Nursing

Department of Health

Bin D - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Louise Wilhite - St Laurent, General Counsel

Department of Health

Bin C65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

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.