21-000346 Heather Ann Neville vs. Board Of Nursing Status: Closed Recommended Order on Thursday, June 3, 2021.

Summary: The Department proved Petitioner pleaded to crimes related to the practice of nursing and had a previous nursing license revoked; however, mitigating factors warrant approval of new license with conditions.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

H EATHER A NN N EVILLE ,

Petitioner ,

vs. Case No. 21 - 0346

B OARD OF N URSING ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted by Zoom Conference before

Administrative Law Judge Jodi - Ann V. Livingstone of the Division of

Administrative Hearings (DOAH), on March 18, 2021.

A PPEARANCES

For Petitioner: Heather Ann Neville , pro se

15735 Vil la Drive

Hudson, Florida 34667

For Respondent: Deborah B. Loucks, Esquire

Marlene Katherine Stern, Esquire

Office of the Attorney General

The Capitol, Plaza Level - 01

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

The is sue in this case is whether Petitioner ' s application for licensure as a

registered nurse should be granted .

P RELIMINARY S TATEMENT

In a Notice of Intent to Deny (Notice) dated January 4, 2021, the Board of

Nursing (Board or Respondent) notified Heather Ann Neville (Ms. Neville or

Petitioner ) that it voted to deny her single state registered nurse by

endorsement application, pursuant to section s 464.018(1) and 456.072(2) ,

Florida Statutes .

Petitioner timely requested an administrative hearing challenging

Re spondent ' s proposed action, and the matter was referred to DOAH for the

assignment of an administrative law judge to conduct a chapter 120 hearing.

The final hearing was held on March 18, 2021, with both parties present

and appearing from different locat ions in Florida via Zoom. Petitioner

testified on her own behalf and presented the testimony of Kathleen Selby,

Burjis Shroff, Marisa Cook, Yvonne Osgood, and Kim Roneree . Petitioner ' s

Exhibit D (pages A31 and A33 through A36 only), Exhibit F, Exhibit I

th rough K, and Exhibit M were admitted into evidence. Respondent

presented the testimony of Lisa Johnson. Respondent ' s E xhibits 1 and 2 were

admitted , without objection . The parties were reminded that, even though

their exhibits were admitted into evidence, hearsay evidence contained in the

exhibits would not be relied on as the sole basis for findings of fact unless the

hearsay evidence would be admissible over objection in a civil action in

Florida. See § 120.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 28 - 106 .213(3).

At the close of the hearing, the parties requested a n extended deadline of

20 day s following DOAH ' s receipt of the hearing transcript to file post -

hearing submittals. 1 On April 20 , 2021, the court reporter filed a one - volume

Transcript of the fin al hearing with DOAH. Both parties timely filed

Proposed Recommended Order s, which have been considered in the

preparation of this Recommended Order.

1 By agreeing to an extended deadline for post - hearing submissions beyond ten days after the

filing of the transcript, the parties waived the 30 - day timeframe for issuance of the

Recommended Order. See Fla. Admin. Code R. 28 - 106.216.

All references to the Florida Statutes are to the 2020 version, unless

otherwise indicated.

F INDINGS OF F ACT

1. Petitioner is a recovering alcoholic who, as of the date of the hearing,

has been sober for almost six years. She has had several run - ins with law

enforcement, all tied to her past alcohol abuse. Petitioner is not shy to admit

this and is quite open about her past.

2. In May 2003, Petitioner entered a plea of nolo contendere to the crime

of driving under the influence. In January 2007, Petitioner entered another

plea of nolo contendere to the crime of driving under the influence.

3. In June 2016, Pe titioner entered a plea of nolo contendere to the crimes

of aggravated assault with a firearm, a felony; battery, a misdemeanor; and

using a firearm while intoxicated, a misdemeanor. These charges stemmed

from an alcohol - fueled argument with her ex - husband .

4. In June 2017, the Board Ð the licensing authority for the state of

Florida Ð issued a F inal O rder revoking Petitioner ' s license to practice as a

registered nurse. The Board cited Petitioner ' s 2016 pleas a s grounds for the

revocation .

5. For the 2016 c riminal pleas, Petitioner was sentenced to three years in

prison. Petitioner served the three years and was released in 2019.

6. In April 2020, Petitioner submitted a nursing licensure by endorsement

application to the Board, requesting a new license to pr actice as a registered

nurse.

7 . Petitioner was forthcoming in her application for licensure. She

disclosed her criminal history and her prior licensure revocation.

8 . Petitioner has sought out and completed treatment programs to address

her alcoholism . Prior to entering prison, she completed a 90 - day treatment

program.

9. While in prison, Petitioner completed an additional six - month intensive

outpatient treatment program.

10. Petitioner also completed two faith - based programs and a third

substance ab use program associated with a work release program.

11. Petitioner remains an active participant in Alcoholics Anonymous.

12. Several of Petitioner ' s colleagues and friends appeared at the hearing

to testify on her behalf, including Kathleen Selby, BSN, RN (Nurse Selby),

and Burjis Shroff, MD (Dr. Shroff).

13 . Nurse Selby is the Nursing Director of Emergency Services at

Raulerson Hospital. Petitioner worked under Nurse Selby ' s direct supervision

for approximately two years. Petitioner was working with Nu rse Selby when

she was arrested in 2015 for the crimes she ultimately pleaded to in July

2016. Petitioner resigned from Raulerson Hospital in November 2015,

because of her arrest/prosecution.

14. In a letter of recommendation, Nurse Selby stated that Peti tioner " had

great compassion, and always went above and beyond for her patients. "

Nurse Selby also wrote that she " never questioned [Petitioner ' s] knowledge or

skills. She was a very good ER nurse. "

15. At the hearing, Nurse Selby testified that Petitioner ' s ability to

practice nursing was not affected by the events that occurred in her private

life. She stated as follows:

I never saw anything but the best patient care.

That ' s one of the reasons why I ' m here supporting

you. You had a special connection with your elderly

patients that I have always admired, and never

ever saw you out of line with a patient. You were

always one of my most dependable nurses.

16 . Nurse Selby further testified that she desired to have Petitioner

return to work with her, but that it may be difficult, considering Raulerson

Hospital ' s policies. Raulerson Hospital does not hire nurses with felony

convictions. Nurse Selby, however, vowed to " fight the fight " to have

Petitioner join her staff. She has reached out to Raulerson Hospital ' s chief

executive officer to petition for Petitioner ' s rehire. Nurse Selby ' s willingness

to fight to provide a second chance to Petitioner is a testament to how

strongly she supports Petitioner, and to her belief that Petitioner is a good

nurse.

17. For th e period of 2008 through 2010, Petitioner worked as an

emergency room nurse at the Delray Medical Center ' s ER/Trauma Center.

While there, she worked directly with Dr. Shroff, who at that time was the

Assistant Medical Director.

18. In a letter of recommen dation, Dr. Shroff wrote that Petitioner was a

" very competent and compassionate nurse who was always eager to learn and

be of assistance to anyone whenever called upon. "

19. At the hearing, Dr. Shroff testified that Petitioner was one of the top

nurses a t the medical center. Dr. Shroff testified that Petitioner was

compassionate, always willing to learn, and a pleasure to be around. He

stated that " as an ER physician, a good nurse has you well covered, and I

have never felt uncomfortable with [Petitioner] as one of my nurses. "

20 . After losing her license and being released from prison, Petitioner

sought employment outside of the nursing profession. She currently works for

Marketopia as a prospect engagement consultant. Kim Roneree

(Ms. Roneree) serves as the director of human resources for Marketopia.

Ms. Roneree testified that she hired Petitioner despite Marketopia ' s policy

against hiring convicted felons. Ms. Roneree testified that she hired

Petitioner after having a long conversation with her about her criminal

history, and that she made the decision to hire Petitioner based on

Petitioner ' s character. Ms. Roneree further testified as follows:

Heather is one of our top agents, I ' ll be completely

honest. I actually was the one that hired Heather,

knowing what her background was and knowing

what she had been through. We had a very real

conversation, and she has blown me away at every

corner. Not knowing how to do the job or, you know,

really what the job was going to entail, she took it

on with a -- with an ease like no other. She is one

that we trust 110 percent, implicitly, with training

other team members. È I support her 110 percent.

I also believe all people deserve second chances. So

if there was anybody that I would support in that,

it would be her.

21. Although Petitioner has found success outside of nursing, she hopes to

be able to practice nursing again, as it is her passion.

22. The Department presented the testimony of Lisa Johnson, who was

accepted as an expert in the practice of nursing. Nurse Johnson testified that

the crimes of aggravated assault and battery relate to the practice of nursing.

Nurse Johnson's unrebutted testimony is credited.

C ONCLUSIONS OF L AW

23. DOAH has jurisdiction over the parties and the subject matter of this

cau se pur suant to sections 120.569 and 120.57( 1) , Florida Statutes .

2 4 . Petitioner challenges the Board ' s notice of its intent to deny her

application for a license to practice as a registered nurse . As an applicant,

Petitioner bears the burden of demonstrating th at she is entitled to licensure.

Dep ' t of Child. & Fams. v. Davis Fam. Day Care Home , 160 So. 3d 854, 857

(Fla. 2015); Dep ' t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996)( " The general rule is that a party

asserting the affirmative of an issue has the burden of presenting evidence as

to that issue. " ) .

2 5 . In an application denial proceeding, w hile the ultimate burden

remains with Petitioner, it is the Board ' s burden to prove the specific acts or

vio lations which it alleges are grounds for denial and to produce competent,

substantial evidence to support those reasons . See M.H. v. Dep ' t of Child. &

Fams. , 977 So. 2d 755, 761 (Fla. 2d DCA 2008)( " Without question, an

applicant for a license has the initi al burden of demonstrating his or her

fitness to be licensed. ... But if the licensing agency proposes to deny the

requested license based on specific acts of misconduct, then the agency

assumes the burden of proving the specific acts of misconduct that it claims

demonstrate the applicant ' s lack of fitness to be licensed. " ).

2 6 . The burden of proof in a license application proceeding is governed by

the preponderance of the evidence standard. Osborne at 934 - 35; see also

§ 120.57(1)(j), Fla. Stat.

27 . As the basis for its denial of Petitioner ' s application for a registered

nurse license, the Department alleged the following, as set forth in its Notice

of Intent to Deny:

Pursuant to Sections 464.018(1) and 456.072(2),

Florida Statutes (2020), the Board may refu se to

certify an applicant for licensure, restrict the

practice of the licensee, or impose a penalty.

Ms. Neville answered affirmatively to criminal and

disciplinary history questions. The background

screening revealed that Ms. Neville entered a plea

of no lo contendere to a felony aggravated assault

with firearm against a law enforcement officer in

2015. In addition, from 2003 to 2015, Ms. Neville

entered pleas of nolo contendere to two separate

misdemeanor driving under influence charges and

misdemeanor ba ttery and using a firearm while

under the influence charges.

Section 464.018(1)(c) , Florida Statutes, provides

that being convicted or found guilty of, or entering

a plea of guilty or nolo contendere to, regardless of

adjudication, a crime related to the practice or the

ability to practice nursing constitutes grounds for

denial of a license. Section 456.072(1)(c) , Florida

Statutes, provides that entering a plea of guilty to,

regardless of adjudication, a crime in any

jurisdiction which relates to the pract ice of or the

ability to practice a licensee ' s profession constitutes

grounds for denial of a license. The Board found

that the crimes committed by the Applicant are

crimes related to the practice or the ability to

practice as a registered nurse.

Section 456.072(1)(f), Florida Statutes, provides

that having a license to practice nursing revoked,

suspended, or otherwise acted against, including

the denial of licensure, constitutes grounds for

denial of a license. In 2017, Ms. Neville ' s registered

nurse lic ense was revoked.

28. The Department has proved that Petitioner entered a plea of nolo

contendere to crimes related to the practice or the ability to practice nursing ,

in violation of sections 484.018(1)(c) an d 456.072(1)(c) , Florida Statutes .

29. The De partment also proved that Petitioner had her previous license

to practice nursing revoked by the Board in 2017, in violation of section

456.072(1)(f).

30. Florida Administrative Code Rule 64B9 - 8.006 provides a range of

penalties that may be imposed on appl icants for licensure who are found to

have violated chapters 456 and 464. For a violation of sections 484.018(1)(c)

an d 456.072(1)(c) , the rule provides a penalty range of a reprimand up to

revocation. For a violation of section 456.072(1)(f), the rule all ows for a letter

of concern up to the same penalty imposed in the other jurisdiction.

31. Rule 64B9 - 8.006(5) provides that the Board may deviate from the

guidelines upon a showing of aggravating or mitigating circumstances . The

rule provides in pertinent p art:

(b) Circumstances which may be considered for

purposes of mitigation or aggravation of penalty

shall include, but are not limited to, the following:

1. The danger to the public.

2. Previous disciplinary action against the licensee

in this or any oth er jurisdiction.

3. The length of time the licensee has practiced.

4. The actual 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 licensee to c orrect or stop

violations, or refusal by the licensee to correct or

stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinary proceedings.

32. Under the facts found herein, the penalty to be imposed on Petitioner

is mitigat ed by the factors set forth in the rule .

Danger to the Public and Damage Caused by the Violations

33. Petitioner is a recovering alcoholic who made poor decisions that ha ve

left her with a criminal history. She has been prosecuted for driving under

the inf luence and, most notably, the crimes of battery, aggravated assault,

and discharging a firearm while intoxicated. For the latter crimes, Petitioner

served a three - year prison sentence.

34. Petitioner has completed several drug treatment courses in an effo rt to

address her alcoholism . It must be noted that although Petitioner had

evident problems in her personal life, these problems did not spill over into

her work life. In fact, former colleagues testified that Petitioner was, at all

times, an excellent ca regiver and remarkable nurse.

Previous Disciplinary Action

35. Petitioner has previously been disciplined by the Board; however, the

discipline was tied to the criminal violations that are the subject of this

action. As such, this prior discipline should not serve to further aggravate

any penalty imposed.

Efforts at Rehabilitation and Attempts by the L icensee to C orrect or S top

V iolations

36. As set forth above, Petitioner has completed three drug rehabilitation

programs and has completed two other faith - based, self - improvement

programs. She continues to attend Alcoholics Anonymous meetings.

Petitioner excels at her current non - nursing position. Her current supervisor

has nothing but positive things to say about her work ethic. There is no

evidence that Pe titioner has been in any trouble Ð legal or otherwise Ð since

being released from prison.

37. Consideration of the mitigating and aggravating factors above weigh

in favor of granting Petitioner ' s application.

R ECOMMENDATION

Based on the foregoing Findings o f Fact and Conclusions of Law, it is

R ECOMMENDED that the Board of Nursing enter a final order : (1) granting

Petitioner ' s license to practice as a registered nurse ; (2) immediately

suspending such license for an indefinite period pending satisfactory

compl etion of an Intervention Project for Nurses evaluation and any

recommended treatment; and (3) requiring the completion of continuing

education as the Board deems appropriate .

D ONE A ND E NTERED this 3rd day of June , 2021 , in Tallahassee, Leon

County, Flori da.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of June , 2021 .

C OPIES F URNIS HED :

Deborah B. Loucks, Esquire Heather Ann Nev ille

Office of the Attorney General 15735 Villa Drive

The Capitol, Plaza Level - 01 Hudson, Florida 34667

Tallahassee, Florida 32399

Louise St. Laurent, General Counsel

Marlene Katherine Stern, Esquire Department of Health

Office of the Attorney General 4052 Bald Cypress Way, Bin C65

The Capitol, Plaza Level - 01 Tallahassee, Florida 32399

Tallahassee, Florida 32399

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C 02

Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 th e agency that will issue the Final Order in this

case.