21-000828PL Department Of Health, Board Of Nursing vs. Fransetta Coen D'Amico, R.N. Status: Closed Recommended Order on Wednesday, June 30, 2021.

Summary: The allegations of the Administrative Complaint were not proved by clear and convincing evidence.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH ,

B OARD OF N URSING ,

Petitioner ,

vs. Case No. 21 - 0828 PL

F RANSETTA C OEN D'A MICO , R. N.,

Respondent .

/

R ECOMMENDED O RDER

An administrative hearing was conducted in this case on May 4, 2021 , via

Zoom conference , before James H. Peterson , III, Administrative Law Judge

with the Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioner: Logan A. White , Esquire

Matthew G. Witters, Esquire

Judson Searcy , Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Fransetta Coen DÔAmico , R.N., pro se

593 Gondolier Terrace

Deltona , Florida 32 725

S TATEMENT OF T HE I SSUE S

Whether Respondent should be subject to action against her r egistered

n ursing license for alleged unprofessional conduct and , if so, what is the

appropriate penalty.

P RELIMINARY S TATEMENT

On April 8 , 20 19 , the Department of Health (Petitioner or Department)

filed an a dministrative c omplaint (Administrative Complaint) alleging that

Respondent violated s ection 464.018(1)(h), Florida Statutes (2017), 1 by

engaging in unprofessional conduct as defined by Florida Administrative

Code R ule 64B9 - 8.005(13), to include using force against a patient, striking a

patient, or throwing objects at a patient. Respondent timely filed an Elect ion

of Rights disputing the allegations of the Administrative Complaint and

requesting a formal hearing pursuant to section s 120.569(2)(a) and 120.57(1) ,

Florida Statutes . The case was referred to DOAH on March 3, 2021 .

A t the final hearing , which was held as scheduled on May 4, 2021 , the

Department presented the testimony of the mother of patient A.S. and

introduced two exhibits received into evidence without objection as

PetitionerÔs Exhibit P - A (a password - protected flash drive containing video of

Respondent and Patient A.S. , taken on May 4, 2018) and PetitionerÔs Exhibit

P - B (a certified copy of RespondentÔs r egistered n ursing licensure file). The

undersigned was unable to access the USB drive containing PetitionerÔs

Exhibit P - A during the hearing, but the video was played for all parties at the

hearing over Zoom conference without issue. Respondent testified on her own

behalf but offered no other exhibits.

The proceedings were recorded and a transcript was ordered. The parties

were given until 30 days after the filing of the t ranscript within which to file

their respective proposed recommended order s . As authorized at the hearing,

o n May 5, 2021, the Department filed an additional copy of PetitionerÔs

Exhibit P - A in a compact disk format that is not password - protected .

1 Unless otherwise indicated, all references to the Florida Statutes and Florida

Administrative Code are to the 2017 versions in effect at the time of the alleged violation in

this case.

The one - volume T ranscript of the proceedings was filed with DOAH on

May 27 , 2021. Thereafter, on June 25, 2021, Petitioner timely filed its

Proposed Recommended Order and Respondent filed a document challenging

the testimony of Peti tionerÔs witness, which document is considered a s

RespondentÔs Proposed Recommended Order in this case. Both Proposed

Recommended Orders ha ve been considered in the preparation of this

Recommended Order.

F INDINGS OF F ACT

1. Petitioner is the state agency charged with the regulation of the

practice of nursing pursuant to section 20.43, and chapter s 456 and 464,

Florida Statutes.

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

registered nurse (RN) within t he state of Florida, having been issued license

number RN 9184977.

3. At all pertinent times, Respondent was employed as a n RN by PSA

Healthcare (PSA), a home health agency in Daytona Beach, Florida.

4. Prior to and on May 4, 2018, Respondent was assigned by P SA to

provide care to Patient A.S .

5. Patient A.S. was a 19 - year - old female patient who suffered from

cognitive and developmental disabilities, including cerebral palsy, autism

spectrum disorder, and epilepsy, and required around - the - clock supervision

and ca re.

6. Patient A.S. was visually impaired, deaf, and nonverbal. Patient A.S.

communicated via basic signs signifying the words Ñno,Ò Ñstop , Ò Ñeat,Ò Ñsleep,Ò

and Ñdrink.Ò

7. Patient A.S.Ôs mother, S.S., employed nurses to act as caregivers for

Patient A.S. in her home.

8. To monitor the care her daughter was receiving while S.S. was away,

S.S. installed home security video cameras in multiple rooms in the house

and informed caregivers who entered the home of their presence.

9. After returning home on May 4, 201 8, S.S. reviewed the home security

video footage from that day.

10. The security footage from that day shows Respondent and Patient

A.S. seated in the living room of S.S.Ôs home. The video is clear, and the

individuals in the video are readily identifiable. T he video also has audio.

11. In the video, Respondent is seated in a recliner with her legs

extended, and Patient A.S. is seated to the RespondentÔs right in a loveseat

that was adjacent to the recliner.

12. Patient A.S. can be seen reaching toward the ground on the side of the

loveseat with her left arm.

13. As Patient A.S. reached down, Respondent reacted by extending her

right arm towards Patient A.S. and coming into contact with Patient A.S. Ôs

upper left arm with a quick , open - hand ed movement .

14. The contact was quick and deliberate but was not intended to harm

Patient A.S., but rather to get her attention.

15. As a follow - up, Respondent took hold of Patient A.S.Ôs left arm and

pulled it upwards and away from the side of the loveseat.

16. Patient A.S. reacted to t he contact by quickly sitting up and making

eye contact with Respondent . When Patient A.S. made eye contact,

Respondent gave Patient A.S. the hand sign for Ñno.Ò

17. Respondent credibly explained at the hearing that her actions that

day were to get PatientÔs A.S.Ôs attention and prevent Patient A.S. from

extending the loveseatÔs legs with controls that Respondent believed were

located on the side of the loveseat where Patient A.S. was reaching with her

left arm. Respondent reasonably feared that extension of the loveseatÔs legs

would have trapped Patient A.S.Ôs legs under the already extended portion of

RespondentÔs recliner.

C ONCLUSIONS OF L AW

18. DOAH has jurisdiction over the subject matter of this proceeding and

of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida

Statutes .

19. Petitioner, as the party asserting the affirmative in this proceeding,

has the burden of proof. See , e.g., Balino v. DepÔt of Health & Rehab. Servs . ,

348 So. 2d 349 (Fla. 1st DCA 1977). Because Petitioner seeks to suspend,

revoke, or impose other discipline upon a license , this proceeding is penal in

nature , see State ex rel. Vining v. Fla. Real Estate CommÔn , 281 So. 2d 487,

491 (Fla. 1973) , and must prove the allegations in the Complaint by clear and

con vincing evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

20. C lear and convincing evidence:

[r]equires that 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 confusion as to the facts in issue. The

evidence mus t 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 Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz v. Walker ,

429 So. 797, 800 (Fla. 4th DCA 1983).

21. Disciplinary statutes and rules Ñmust be construed strictly, in favor of

the one against whom the penalty would be imposed.Ò Munch v. DepÔt of ProfÔl

Reg . , Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 199 2) .

22. I n determining whether Petitioner has met its burden of proof, the

evidence presented should be evaluated considering the specific factual

allegations in the Administrative Complaint. Disciplinary actions against

licensees may only be based upon those offenses specifically alleged in the

charging document. See , e.g., Trevisani v. Dep't of Health , 908 So. 2d 1108

(Fla. 1st DCA 2005).

23. The Administrative Complaint charged Respondent with violating

s ection 464.018(1)(h) by engaging in unprofessional conduct as defined by

r ule 64B9 - 8.005(13). Section 464.018(1)(h), which relates to the practice of

nursing, provides in pertinent part:

(1) The following acts shall constitute grounds for

denial of a license or disciplinary action . . .:

* * *

(h) Unprofessional conduct, as defined by board rule.

24. Rule 64B9 - 8.005(13) provides in pertinent part:

Unprofessional conduct shall include:

* * *

(13) Using force against a patient, striking a patient,

or throwing objects at a patient;

25. Considering the evidence and burden of proof in this case, it is found

that the evidence was less than clear and convincing to prove the charge

against Respondent.

26. Rather than showing that Respondent used force against or struck a

p atient as charged , the evidence indicates that RespondentÔs actions were

designed to warn and protect the patient.

R ECOMMENDATION

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

R ECOMMENDED that the Board of Nursing enter a final order dismissing the

Administrative Complaint.

D ONE A ND E NTERED this 30th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

J AMES H. P ETERSON , II I

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 30th day of June , 2021.

C OPIES F URNISHED :

Fransetta Coen DÔAmico, R.N. Logan A. White, Esquire

593 Gondolier Terrace Prosecution Services Unit

Deltona, Florida 32725 Department of Health

4052 Bald Cypress Way , Bin C - 65

Joe Baker, Jr., Executive Director Tallahassee, Florida 32399

Board of Nursing

Department of Health Judson Searcy, Esquire

4052 Bald Cypress Way, Bin C - 02 Prosecution Services Unit

Tallahassee, F lorida 32399 - 3252 Department of Health

4052 Bald Cypress Way, Bin C - 65

Deborah McKeen, BS, CD - LPN Tallahassee, Florida 32399

Board Chair

Board of Nursing Louise St. Laurent, Gen eral Counsel

Department of Health Department of Health

4052 Bald Cypress Way, Bin D - 02 4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399 - 3252 Tallahassee, F lorida 32399 - 3265

Matthew George Witters, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

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 the agency that will issue the Final Order in this

case.