21-001435PL Department Of Health, Board Of Nursing vs. Benjamin Dallas Stoe, R.N. Status: Closed Recommended Order on Thursday, August 26, 2021.

Summary: Petitioner proved by clear and convincing evidence that Respondent is unable to practice nursing with reasonable skill and safety at this time.

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 - 1435P L

B ENJAMIN D ALLAS S TOE , R.N. ,

Respondent .

/

R ECOMMENDED O RDER

On July 6 and 7, 2021, pursuant to s ection 120.57(1), Florida Statutes ,

a duly - noticed hearing was held by Zoom video conference before

Administrative Law Judge Yolonda Y. Green of the Division of

Administrative Hearings (DOAH).

A P PEARANCES

For Petitioner : Ellen LeGendre Carlos, Esquire

Dirlie Anna McDonald, Esquire

Department of Health

4052 Bald Cypre s s Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Benjamin Dallas Stoe, pro se

805 Sunda y Road

Chipley, Florida 32428

S TATEMENT OF T HE I SSUE

Whether Respondent is unable to practice nursing with reasonable skill

and safety by reason of illness or use of alcohol, in violation of section

464.018(1)(j), Florida Statutes (2020); and , if so, the appropriate penalty.

P RELIMINARY S TATEMENT

On February 24, 2021, Petit ioner, Department of Health (Petitioner or

Department ) , filed an Administrative Complaint against RespondentÔs

(Respondent or Mr. Stoe) nursing license. The c omplaint alleged Re spondent

was unable to practice nursing with reasonable skill and safety due to his

moderate alcohol - use disorder and/or use of alcohol .

Respondent timely requested a formal disputed - fact hearing. Petitioner

then referred this case to DOAH for assignment to an administrative law

judge to conduct a hearing.

The hearing was scheduled for July 6 and 7 , 2021 , and the undersigned

conducted a pre - hearing conference with the parties regarding the procedural

aspects of the hearing.

Prior to the hearing, the par ties filed a Pre - Hearing Stipulation. To the

extent relevant, all stipulated facts have been adopted and incorporated into

the Findings of Fact below.

The hearing commenced as scheduled. At the final hearing, Petitioner

presented the lay person testimony of five witnesses as follows: Rohan

Anderson ; Ashley Hall, R.N. ; Loyd Thomas Simmons, APRN ; Janet Smith,

R.N. ; and David Anthony Whisonant, CLP . Petitioner also presented

Terrance R. Reeves, M.D., to testify as an expert in addiction medicine.

Petition erÔs Exhibits 1 through 7 were admitted into evidence. 1 Respondent

did not offer any witnesses and offered RespondentÔs Exhibit 1 , a letter of

reference, though he did not have the document with him at the hearing .

While the undersigned admitted Respondent Ôs exhibit into evidence, subject

to receipt as a late - filed exhibit , it was not received by the undersigned. Thus,

the exhibit is not an Exhibit in the record. 2

The two - volume final hearing Transcript of the hearing was filed at

DOAH on July 27, 2021. Pe titioner timely filed its P roposed Recommended

Order on August 5, 2021, which has been considered in preparing this

Recommended Order. Respondent did not file a post - hearing submittal.

This proceeding is governed by the law in effect at the time of the

commission of the acts alleged in the Administrative Complaint . See

McCloskey v. DepÔt of Fin. Servs. , 115 S o. 3d 441 (Fla. 5th DCA 2013). Unless

otherwise noted, all statutory and regulatory references shall be to the 2020

versions.

F INDINGS OF F ACT

Base d upon the credibility of witnesses and evidence presented at the

final hearing and stipulated facts, the following Findings of Fact are found:

1 Respondent objected to Petitioner Ôs admission of Exhibit 7, which was a c lose - c aption ed

t ele v ision video recording of Respondent and others on July 2, 2020. Respondent argued that

Petitioner only offered a portion of the recordings from that day, and , thus , Petitioner should

offer the complete video. To address RespondentÔs objection, Petitioner was instructed to

contact M r. Anderson to verify whether additional recordings were available for July 2 , 2020 .

However, M r. Anderson was not available. Given t he l ocation of the camera and t he area of

treatment, the video camera may have captured Respondent leaving the emergency room.

After considering the record, h owever, additional recordings would not have change d the

outcome of the undersignedÔs findings in this matter.

2 Respondent indicated at hearing that he was offering the reference letter as his sole exhibit.

He was permitted to file the exhibit with DOAH after the hearing. Instead, Respondent filed

a copy of a certificate of completion for nursing contin uing education courses. The reference

letter was not filed and , thus, is not a part of the record.

Stipulated Facts

1. At all times material to this complaint, Respondent was licensed as a

registered nurse wit hin the State of Florida, having been issued license

number RN 3349322.

2. RespondentÔs address of record is 805 Sunday Road, Chipley,

Florida 32428.

3. At all times material to this complaint, Respondent was employed by

Doctors Memorial Hospital (D MH ) , located in Bonifay, Florida.

4. Respondent submitted to a blood alcohol test, which returned po sitive

at a level of 0.2637 g/dl .

Facts Related to the Events on July 2, 2020

5. On July 2, 2020 , s everal colleagues of Respondent observed

RespondentÔs beha vior at work, which raised questions regarding whether

Respondent was impaired.

6. Janet Smith, a registered nurse, worked at D MH . She had worked with

Respondent for approximately 10 years before July 2, 2020 .

7. Ms. Smith arrived to work at 8:00 a.m. S he observed Respondent at

the emergency room desk from a distance of 10 feet for approxi mately

10 to 15 minutes. She testified that RespondentÔs speech was Ñdifferent, it

was drawn out, and he was talkative, more friendly than usual.Ò

8. Ms . Smith had more than 30 years of experience working in the

emergency room and was familiar with the behavior of persons under the

influence of alcohol. Based on her experience, she believed that Ñ[Respondent]

appeared drunk.Ò

9. Concerned about Respond entÔ s behavior, Ms. Smith shared her concerns

with othe r staff members, including Ashley Hall, Debra Smitty, Rohan

Anderson , and Dr. Contini. Dr. Contini and Ms. Smitty were not offered as

witnesses at the final hearing.

10. Although Ms. Smith had concer ns about Respo ndentÔs behavior on

July 2 , 2020, she otherwise believed he was a strong nurse.

11. Rohan Anderson also obse rved Respondent on July 2, 2020 , after

Debra Smitty shared her concerns about RespondentÔs behavior.

M r. Anderson works at D MH as the C hief O perating O fficer and Director of

Information Technology. M r. Anderson had also worked with Respondent at

another hospital and did not recall any prior impairment issues.

12. Similar to Ms. Smith, M r. Anderson observed Respondent fro m a

distance o f 10 to 15 feet near the emergency room desk. He also noticed that

RespondentÔs sp eech was different than usual. M r. Anderson testified that

Respondent was Ñslurring his words È the way he was controlling the pitch

of his voice. And I knew something was go ing on based on that.Ò

M r. Anderson then shared his concerns about RespondentÔs behavior with

D r. Ulhaq , the emergency room director.

13. Mr. Anderson unequivocally testified that Respondent was known for

being a good nurse and was used as an example for training purposes.

14. Loyd Simmons, an advanced registered nurse practitioner, was

working in the emergency room on July 2, 2020. At Dr. UlhaqÔs request,

Mr. Simmons evaluated Respondent based on the report s of suspected alcohol

use. Mr. Simmons noted th at Respondent was no t acting like his ÑnormalÒ

self and he appeared to be unsteady on his feet. Respondent experienced

difficulty with upward gaze. However, he was alert, oriented , with clear

speech. Mr. Simmons performed a physical examination of Responde nt,

where he did not find any bruises or signs of a re cent fall. He also conducted

a n e u rological examination with Dr. Ulha q, which revealed a positive

Babinski. A positive Bab inski result may be an indicator of a problem in the

cen tral nervous system. It may, however, also be related to alcohol use.

15. Mr. Simmons interprete d findings of RespondentÔs EKG and CT scan

as within normal limits. Mr. Simmons found RespondentÔs EKG and CT scan

results did not indicate a condition that would affect his blood alc ohol level.

The hematology results returned normal results. The blood alcohol level test

returned a result of 263.7 mg/dc, meaning .263 g/dcl . 3 T he chemical analyzer

m achine used to perform the blood alcohol test was working properly,

calibrated properly , and the machine properly reported cor rect blood alcohol

test results for Respondent.

16. Based on his finding s, Mr. Simmons diagnosed Respondent with

alcohol intoxi cation. There was no evidence deduced from the tests performed

that Respondent suffered fr om liver complications or COVID - 19 that would

cause his significantly high alcohol level results.

17. M r. Simmons testified that he had no prior personal knowledge of

Respondent being impaired at work.

18. Ms. Hall worked with Respondent on July 2, 2020 . She observed

Respondent for approximately 30 minutes while working together. She

testified that he was more ÑjollyÒ than usual on that day and his mannerisms

were exaggerated. She then shared her belief with the Director of Nursing

that Respondent appear ed to be impaired. Ms. Hall was present dur ing

RespondentÔs evaluation in the emergency room. She assisted with placing an

IV catheter to withdraw a blood sample from Respondent. She followed the

standard process by cleaning the insertion site with isoprop yl alcohol, and

allowing the area to dry before inserting the catheter. She withdrew the blood

sample and then delivered the sample to the lab d rop - off window for testing.

She had no further contact with the blood sample. Although Ms. Hall

primarily worked a different shift than Respondent, she had never witnessed

Respondent exhibiting similar behavior as he exhibited on July 2, 2020.

19. Overall, e ach witness who worked with Respondent on July 2, 202 0 ,

reported that he was not behaving like normal and his behavior was

consistent with alcohol impairment.

Evaluation o n January 14, 2021

20. Respondent was placed on administrative leave and ultimately,

terminated for Ñbeing at work while under the influence of alcohol.Ò He was

3 The legal limit in Florida for intoxication is considered a blood alcohol level of .08 or above .

presented with the option to vol untarily report to Intervention Project for

Nurses (IPN) in lieu of a complaint filed with the Department, and he agreed

to contact IPN. Respondent subsequently elected not to voluntarily

participate in IPN because he could not Ñafford it.Ò T he Department then

issued an O rder requiring Respondent to undergo an evaluation with

Dr. Reeves.

21. Dr. Reeves, a licensed medical doctor in the State of Florida since

1994, has specialized in addiction medicine since 2010. Dr. Reeves is board

certified in addiction medicine and a member of several professional

organizations for addiction treatment providers. Dr. Reeves serves as the

Medical Director for two treatment facilities, South Walton Medical Group

and Sacred Heart Hospital of the Emerald Coast. Prior to pract icing

addiction medicine, he worked as a vascular surgeon. Dr. Reeves has written

articles and delivered presentations on the topic of addiction medicine.

Dr. Reeves has testified in other legal proceedings within the past 10 years

and has never been disqu alified as an expert. Dr. Reeves was accepted as an

expert on addiction medicine in this matter.

22 . Dr. Reeves performed an independent medical examination (IME) of

Respondent on January 14, 2021. D r. Reeves routinely conducts IMEs of

health care professi onals to determine whether an individual has an issue

with addiction or addictive substances , including alcohol . Dr. Reeves follows a

process for conducting an IME. He reviews the available records, any medical

history, and witness statements . Dr. Reeves t hen meets with the individual

to conduct an in - person e valuation, which includes assessment tests and

screening exams.

23. Dr. Reeves testified that he understood that Respon dent was referred

to him for alleged alcohol intoxication while at work. Dr. Reeve s was

concerned as alcohol is a depressant and directly affects the judgement and

decision - making functions in the brain.

24. Dr. Reeve s discussed the events that gave rise to the DepartmentÔs

complaint and subsequent referral for evaluation. Respon dent explained to

Dr. Reeves that he began drinking more often while he was quarantined with

COVID - 19. Respondent told Dr. Reeves that he had increased his drinking

from two to three beers a night to three to four beers per night, four to five

times per week.

25. Respondent stated that he drank several drinks t he night before he

returned to work to help him sleep. He did not believe that he drank a lot and

was surprised that his test results reflected a significantly elevated alcohol

level. He denied being into xicated at work on July 2, 2020 .

26. Respond ent completed a questionnaire after he arrived for his

evaluation , which Dr. Reeves reviewed with him during the evaluation.

Respondent suggested in his questionnaire that perhaps the alcohol level was

because he had taken Nyquil 4 while driving to work. Respondent later

retracted that statement.

27. Regarding assessments, t he evaluation included an ethyl glucuronide

(ETG) test, which was performed u pon RespondentÔs arrival to Dr. Reeves

office. An ETG test is a u rine test that measures the level of ethyl

glucuronide in the body. An ETG test would generally yield positive results

within two to five days after alcohol is ingested. RespondentÔs test was

negative. Dr. Reeves testified that the negative test results su ggest

Respondent had not drank alcohol within the prior three to five days.

28. Dr. Reeves also asked Respondent to undergo a phosphatidylethanol

(PEt h ) test, which tests a blood sample to measure intake of alcohol. The

PEt h test has a longer time frame fo r measurement than the ETG test , as it

measures alcohol in the system for up to 14 days after ingestion. To maintain

the validity of the test , it must be completed within 48 hours of the request.

4 Dr. Reeves testified that a dose of Nyquil contain s appr oximately the same amount of

alcohol as a glass of wine. He estimated that a person would need to consume 10 to 15 doses

of Nyquil to achieve a result of .2637 gm/dcl (RespondentÔs test results).

Respondent did not com plete the test within that time frame. Thus , there

were no P Et h test results for Dr. Reeves to conside r. D r. Reeves testified that

the PEt h test was not a necessary factor for diagnosing an alcohol - use

disorder , as he had sufficient objective data from his evaluation to make a

diagnosis.

Exper t Opinion

29. Based upon his evaluation, Dr. Reeves diagnosed Respondent with

moderate alcohol disorder. Dr. Reeves relied upon the criteria established in

the Diagnostic Statistic Manual - 5 ( DSM - 5 ), whic h sets out the standard of

care for diagnosis of psy chiatric disorders. The DSM - 5 includes alcohol - use

disorder as a psychiatric diagnosis.

30. Dr. Reeves testified that if you meet two or more of 11 alcohol - use

disorder criteria used in the DSM - 5, the individual meet s the criteria for that

level of the dis order. Applying objective factors identified during his

evaluation of Respondent, Dr. Reeves determined that R espondent met four

of the 11 criteria for moderate alco hol - use disorder. Specifically, Dr. Reeves

identified the following criteria in making his assessment :

1 . A lcohol is often taken in larger amounts or over

a longer period than was intended;

* * *

5 . R ecurrent alcohol use resulting in a failure to

fulfill major role obligations at work, school, or

home;

* * *

8 . R ecurring alcohol use in si tuations in which it is

physically hazardous; and

* * *

10 . T olerance is defined by (a) a need for markedly

increased amounts of alcohol to achieve

intoxication or desired effect, or (b) a markedly

diminished effect with continued use of the same

amount of alcohol.

31. Dr. Reeves testified that a nursing professional is considered a safety

sensitive occupation , which requires good decision - making ability. Since

alcohol significantly impairs judgement and decision - making ability, an

individual who is imp aired by alcohol is not s afe to practice as a nurse.

Dr. Reeves credibly opined that Respondent is not safe to practice as a nurse

due to his diagnosis of moderate alcohol - use disorder. Dr. ReevesÔ opinion is

accepted.

32. Dr. Reeves recommended a course of intensive outpatient treatment

for a specified period of time. Even if Respondent indicated he stopped

drinking, without treatment, Dr. Reeves maintains that Respondent is not

safe to practice nursing.

33. Based on his review of the records obtained f rom DMH , Dr. Reeves

concluded that RespondentÔs records reflected no symptoms to demonstrate

that he suffered from a transient ischemic attack (TIA) 5 as Respondent

suggested .

34. There was no evidence offered at hearing that Respondent harmed

patients whi le he was impaired . Other than his behavior exhibiting

impairment, t he testimony overwhelmingly supported that he was considered

a good nurse.

Ultimate Findings of Fact

35. Petitioner presented clear and convincing evidence to demonstrate

that Respondent was impaired while at work on July 2, 2020.

5 A TIA is a temporary period of symptoms similar to a str oke.

36. Petitioner presented clear and convincing evidence to demonstrate

that Respondent is unable to practice nursing with reasonable skill and

safety to patients due to his moderate alcohol - use disorder and alco hol use.

C ONCLUSIONS OF L AW

3 7. DOAH has jurisdiction over the subject matter of this proceeding

pursuant to sections 120.569, 120.57(1), and 456.073, Florida Statutes (2021).

38 . A proceeding, such as this one, to suspend, revoke, or impose other

disci pline upon a license is penal in nature. State ex rel. Vining v. Fla. Real

Estate Comm ' n , 281 So. 2d 4 87, 491 (Fla. 1973). Thus , to impose discipline,

Petitioner must prove the allegations in an administrative complaint by clear

and convincing evidence. De p ' t of Banking & Fin., Div. of Sec. & Inv. Prot. v.

Osborne Stern & Co. , 670 So. 2d 932, 933 - 34 (Fla. 1996) ( citing Ferris v.

Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987)); N air v. DepÔt of Bus. & Pro.

Reg ul . , Bd. of Med. , 654 So. 2d 205, 207 (Fla. 1st D CA 1995).

39. Clear and convincing evidence Ñrequire[s] that the witnesses to a fact

must be found to be credible; the facts to which the witnesses testify must be

distinctly remembered; È the testimony must be clear, direct and weighty,

and the witnesses must be lacking in confusion as to the facts in issue.Ò In re

Davey , 645 So. 2d 398, 404 (Fla. 1994) ( quoting Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)). Additionally, the evidence must be

of such weight that it Ñproduces in the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the precise facts in issue.Ò Id .

40. Penal statutes must be construed in terms of their literal meaning and

words used by the Legislature may not be expanded to broaden t he

application of such statutes. Thus, the provisions of law upon which this

disciplinary action has been brought must be strictly construed, with any

ambigu ity in favor of the one against whom the penalty would be imposed .

Elmariah v. Dep ' t of Pro. Reg ul . , Bd of Med. , 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. Dep ' t of Fin. Servs. , 982 So. 2d 94,

100 (Fla. 1st DCA 2008); Whitaker v. Dep ' t of Ins. & Treas. , 680 So. 2d 528,

531 (Fla. 1st DCA 1996); Dyer v. DepÔ t of Ins. & Treas. , 585 So. 2d 1009, 1013

(Fla. 1st DCA 1991) .

41. The allegations of fact set forth in the Administrative Complaint are

the grounds upon which this proceeding is predicated. Trevisani v . Dep ' t of

Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. Dep ' t 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. Dep ' t o f Child. & Fam. Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA

2008).

42. The Administrative Complaint alleges that Respondent violated

section 464.018(1)(j), by being unable to practice nursing with reasonable

skill and safety to patients due to RespondentÔs mo derate alcohol - use disorder

and/or RespondentÔs alcohol use .

43 . Section 464.018( 1)(j) subjects a registered nurse to disciplinary action

for being unable to practice nursing with reasonable skill and safety to

patients by reason of illness or use of alco hol, drugs, narcotics, chemicals, or

any other type of material or as a result of any mental or physical condition.

44. Based on the Findings of Fact herein, Petitioner proved, by clear and

convincing evidence, that Respondent is unable to practice nursing with

reasonable skill and safety by reason of moderate alcohol - use disorder and

alcohol use, in violation of section 464.018(1)(j) .

Penalty

4 5 . Penalties in a licensure discipline case may not exceed those in effect

at the time a violation was committed. Willner v. De p' t of Pro. Reg ul ., Bd. of

Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295

(Fla. 1991).

4 6 . Section 456.07 9 requires the Board of Nursing to adopt disciplinary

guidelines for specific offenses. Penalties imposed mus t be consistent with

any disciplinary guidelines prescribed by rule. See Parrot Heads, In c. v. Dep ' t

of Bus. & Pro . Reg ul . , 741 So. 2d 1231, 1233 - 34 (Fla. 5th DCA 1999).

4 7 . The Board of Nursing has adopted Florida Administrative Code Rule

64B9 - 8.006, whic h identifies the range of penalties for violations of chapters

456 and 464. The rule also identifies aggravating and mitigating

circumstances to consider in determining the appropriate penalty to be

imposed.

4 8 . Rule 64B9 - 8.006(1)( g) provides that the rec ommended range of

discipline for a first - time violation o f section 464.018(1)(j) is $250 fine,

suspension , and IPN evaluation to $500 fine, suspension, or revocation.

4 9 . Given that there was no patient harm, a mitigating factor, the record

supports a sli ght departure from the disciplinary guidelines, such as no

monetary fine.

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 finding :

A. Respondent violated secti on 464.018(1)(j), Florida Statutes (2020); and

B. suspending RespondentÔs registered nursing license, until such time

that Respondent enters into IPN and complies with any and all terms and

conditions imposed by IPN.

D ONE A ND E NTERED this 26th day of Aug ust , 2021, in Tallahassee, Leon

County, Florida.

S

Y OLONDA Y. G REEN

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 26th day of August, 2021.

C OPIES F URNISHED :

Ellen LeGendre Carlos, Esquire Benjamin Dallas Stoe

Department of Health 805 Sunday Road

4052 Bald Cypress Way , Bin C - 65 Chipley, Florida 32428

Tallahassee, Florida 32399

Joe Baker, Jr., E xecutive Director

Dirlie Anna McDonald, Esquire Board of Nursing

Department of Health Department of Health

4052 Bald Cypress Way, Bin C - 65 4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Louise St. Laurent, General Counsel Deborah McKeen, BS, CD - LPN

Department of Health Board of Nursing

4052 Bald Cypress Way, Bin C65 Department of Health

Tallahassee, Florida 32399 4052 Bald Cypress Way, Bin D 02

Tallahassee, Florida 32399

N OTICE OF R IGH T 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.