21-001517PL Department Of Health, Board Of Nursing vs. Walter Lindsey Kemp, Jr., L.P.N. Status: Closed Recommended Order on Monday, October 4, 2021.

Summary: Petitioner proved by clear and convincing evidence that Respondent cannot practice nursing with reasonable skill and safety.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

N URSING ,

Petitioner ,

Case No. 21 - 1 517PL

vs.

W ALTER L INDSEY K EMP , J R ., L.P.N. ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted on August 17, 2021, via

Zoom, before Garnett W. Chisenhall, a duly designated Administrative Law

Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petit ioner: Amanda M. Godbey, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Walter Lindsey Kemp, Jr. , pro se

855 Limoges Way

Pensacola, Florida 32505

S TATEMENT OF T HE I SSUE S

The issues are whether Respondent is in violation of section 464.018(1)(j),

Florida Statutes (2020), 1 by being unable to practice nursing with reasonable

skill and safety; and, if so, the appropriate penalty.

1 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida

Statutes. See McCl osky v. DepÔt of Fin. Serv. , 115 So. 3d 441 (Fla. 5th DCA 2013)(stating that

a proceeding is governed by the law in effect at the time of the commission of the acts alleged

to constitute a violation of law).

P RELIMINARY S TATEMENT

The Department of Health (Ñthe Departme ntÒ) issued an Administrative

Complaint on December 30, 2020, alleging that Respondent (ÑWalter Lindsey

Kemp, Jr., L.P.N.Ò) was in violation of section 464.018(1)(j), by being unable

to practice nursing with reasonable skill and safety due to Ñsevere alcoh ol use

disorder, post - traumatic stress disorder, and depressive disorder.Ò Mr. Kemp

disputed the DepartmentÔs allegation, and the Department referred this

matter to DOAH for a formal administrative hearing. After granting one

continuance, the undersigned i ssued a notice scheduling the final hearing for

August 17, 2021.

The Department filed a Motion to Relinquish Jurisdiction on June 14,

2021, asserting that Mr. KempÔs responses to a Request for Admissions

demonstrated there were no disputed issues of mater ial fact. After

considering the aforementioned motion during a telephonic conference on

June 17, 2021, the undersigned issued an Order that same day denying the

Motion to Relinquish Jurisdiction because Ñit was apparent that [Mr. Kemp]

does dispute any all egation that he is unable to practice nursing with

reasonable skill and safety due to alcohol use, PTSD, and/or depressive

disorder.Ò

The final hearing took place as scheduled. The Department presented

testimony from Belinda Kaye Bass and Rosie Burr. Pe titionerÔs Exhibits 1 2

through 3, 5 and 6 were accepted into evidence. Mr. Kemp testified on his

own behalf but did not attempt to move any exhibits into evidence.

2 The DepartmentÔs expert witness, Dr. Joseph Is erman, was deposed in lieu of live

testimony, and his deposition is P etitionerÔs Exhibit 1.

The one - volume final hearing Transcript was filed on September 2, 2021.

Both parties filed timely proposed recommended orders that were considered

in the preparation of this Recommended Order.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing,

the entire record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. The Department of Health, Board of Nursing, is the state agency

charged with regulating nursing in the State of Florida, pursuant to chapters

456 and 464, Florida Statutes.

2. Mr. Kemp is a combat veteran who participated in Operation Desert

Storm. In 2004 or 2005, he earned a nursing degree from Virginia College

and became licensed in the State of Florida as a licensed practical nurse

(ÑLPNÒ).

3. Mr. Kemp suffers from post - traumatic st ress disorder (ÑPTSDÒ),

anxiety, and depression. Three or four years ago, Mr. Kemp participated in

an outpatient, substance abuse treatment program in Gulf Breeze, Florida.

He successfully completed the program but was diagnosed with alcohol abuse

disorder .

4. During the Summer of 2020, Mr. Kemp was employed as the Assistant

Director of Nursing at a healthcare facility called The Waterford at Creekside

(ÑCreeksideÒ). Belinda Kaye Bass was CreeksideÔs Director of Nursing and

had known Mr. Kemp for approxima tely 10 years due to previously working

with him at Southern Oaks Nursing Home.

5. On approximately Tuesday, June 30, 2020, Mr. Kemp called Ms. Bass to

tell her that he was having issues with his father. Mr. Kemp did not report

for work the next day, and Ms. Bass became concerned when she was unable

to reach him by telephone. 3 Because she was already scheduled to leave

CreeksideÔs campus for business purposes on July 2, 2020, Ms. Bass decided

to visit Mr. KempÔs home that morning in order to check on him.

6. Mr. Kemp was at home that morning and had been drinking liquor

prior to Ms. BassÔs arrival. At some point during her visit, she was alone in a

room of the house and noticed a box containing a bottle of morphine on the

floor. Upon picking it up, she di scovered that the morphine belonged to a

Creekside resident. When Mr. Kemp returned to the room, Ms. Bass asked

him about the morphine, and he responded by telling her to leave and

accused her of attempting to set him up. Ms. Bass thought that Mr. Kemp

was acting paranoid and seemed impaired. 4

7. Ms. Bass returned the morphine to Creekside and called the police.

The seal on the morphine bottle was intact, and the police declined to pursue

charges against Mr. Kemp.

8. Creekside fired Mr. Kemp on July 3, 2 020, for Ñgross misconduct.Ò

9. Pursuant to its authority under s ection 464.018(1)(j) , the Department

ordered Mr. Kemp to undergo an evaluation of his mental and physical

condition. 5 Part of that evaluation was a phosphatidyl ethanol (ÑPEthÒ) test

3 Mr. Kemp testified that he had told an unidentified person in authority at Creekside on

approximately June 30, 2020, that he was resigning because his workload wa s excessive.

Ms. Bass was unaware of Mr. KempÔs resignation, and her testimony on this point is

credited.

4 Mr. Kemp denied that Ms. Bass found a residentÔs medication in his home and asserted

that Ms. Bass and his ex - wife were conspiring against him. M r. KempÔs testimony on this

point is not credited.

5 Section 464.018(1)(j) subjects LPNs to discipline for Ñ[b] eing unable to practice nursing with

reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics,

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

In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon

General or the State Surgeon GeneralÔs designee that probable cause exists t o believe that

the nurse is unable to practice nursing because of the reasons stated in this paragraph, the

authority to issue an order to compel a nurse to submit to a mental or physical examination

by physicians designated by the department. If the nurse refuses to comply with such order,

the departmentÔs order directing such examination may be enforced by filing a petition for

enforcement in the circuit court where the nurse resides or does business. Ò

of Mr . KempÔs blood. PEth levels are used to determine if someone drinks

heavily or engages in binge drinking.

10. A ÑnormalÒ or ÑhealthyÒ PEth level is 20 nanograms per milliliter.

Mr. KempÔs blood contained 317 nanograms per milliliter, and that amount is

1 5 to 16 times what is considered to be a healthy level.

11. Mr. KempÔs evaluation also consisted of a two - hour assessment by

Dr. Jordan Iserman 6 on November 2, 2020. Dr. Iserman considered

Mr. KempÔ s PEth test result to be an indication of Ñpretty serio us heavy binge

drinking.Ò 7

12. Dr. Iserman also evaluated Mr. Kemp based on the criteria for severe

alcohol use disorder set forth in the Diagnostic and Statistical Manual of

Mental Disorders Ï Fifth Edition (Ñthe DSM - 5Ò). 8 If a person satisfies at leas t

two of the 11 criteria set forth in the DSM - 5, then that person is thought to

suffer from severe alcohol use disorder.

13. Dr. Iserman thought that several of the DSM - 5 criteria applied to

Mr. Kemp, but two seemed particularly applicable to Mr. Kemp. Fo r example,

the DSM - 5 indicates that one sign of severe alcohol use disorder is that the

person in question has given up important social, occupational, or

recreational activities. Dr. Iserman believes that criterion applies to

Mr. Kemp because he was Ñmor e than comfortable just deciding he wasnÔt

going back to work.Ò Also, rather than giving Creekside a two weeksÔ notice ,

he just stopped coming to work.

6 Dr. Iserman is licensed to practice medicine in F lorida and is a board - certified psychiatrist

and addictionologist. He has been qualified to render opinions regarding addiction medicine

in at least 50 other legal proceedings, and the undersigned found him to be qualified to

render opinion testimony regar ding addiction medicine and related disorders.

7 In addition, a test of Mr. KempÔs hair indicated that he had been using marijuana.

8 Using the criteria set forth in the DSM - 5 to diagnose severe alcohol disorder is an accepted

practice in addi c tion med icine.

14. The DSM - 5 also identifies ÑtoleranceÒ as an indicator of severe alcohol

use disorder. In other wor ds, some one with an alcohol use disorder requires

markedly increased amounts of alcohol in order to achieve intoxication.

Dr. Iserman believes this criterion applies to Mr. Kemp because his PEth test

indicated he has a high tolerance for alcohol.

15. As for why someone with depression, PTSD, and severe alcohol use

disorder would be unable to practice nursing with reasonable skill and safety,

Dr. Iserman explained that alcohol use disorder exacerbates the symptoms of

PTSD:

Well, actually when you talk abo ut someone with

post - traumatic stress disorder, that is a very

troubling syndrome whereby the person is

continuously revisited by traumatic, sometimes

near - death experiences, that have transpired in the

past or they had seen a loved one shot and killed in

front of them, something tremendous like that. And

these people have terrible problems resting,

sleeping, they become emotionally numb, they donÔt

want to have anything to do with people. And so

clearly, and many times what they will reach for

first is som e alcohol because thatÔs going to numb

them up. All right? But that only makes the

depression and the anxiety from the post - traumatic

stress disorder worse because the hallmark

symptom of alcohol withdrawal is anxiety. So

youÔre sort of Ï itÔs a downward s piral here with one

acting on the other, each one acting on the other, to

make them both worse.

16. As for how alcohol use disorder affects someone suffering from

depression , Dr. Iserman explained that :

if youÔre already depressed and then youÔre

drinki ng alcohol, youÔre only Ï you can only expect

that youÔre going to intensify the level of depression

that you had previously. And you know, does that

push a person to the point where they Ï theyÔre not

in their right mind and they decide to blow their

brai ns out or drive their car into a tree or whatever

it is? Certainly could.

17. Dr. Iserman also described how severe alcohol use disorder and

depression c an impact an LPNÔs ability to safety administer medication to

patients:

Well, if you go back to, you know, how alcohol

impairs a [personÔs] coordination, focus, and

everything like that, I mean, LPNs are passing out

medications to different individuals, some of them

with morphine and things like that. They could

very easily make a medication error and give the

wrong person someone elseÔs medication which

could have very serious if not lethal effects on the

person that they gave it to by mistake. And it

clearly would impair their ability to think clearly,

focus, concentrate, not to mention the physical

repercussions.

* * *

Well, if depression is Ï again, if itÔs controlled, then

they should be able to perform their chosen

profession. Okay? If itÔs not, depressed people donÔt

have a lot of motivation, they donÔt have a whole lot

of Ï it can affect the m cognitively, emotionally,

physically. It will totally destroy motivation,

willingness to be [sic] significantly focused in on

what it is that theyÔre supposed to do. They donÔt

have the motivation. They donÔt have the energy.

They donÔt have [the] oomp t o, you know, exert that

type of energy.

18. In sum, Dr. Iserman opined that Mr. Kemp is unable to practice

nursing with a reasonable degree of skill and safety.

19. Mr. Kemp testified that he has substantially curtailed his alcohol

consumption since the PEth test described above. He asserts that he stopped

drinking liquor in February or March of 2021 and has since restricted his

alcohol consumption to 32 ounces of beer three or four days a week. As for

why he supposedly made this change, Mr. Kemp explain ed that :

I was going through a lot, and I noticed that I was

drinking a little too much. I was a caregiver for my

mom. My mom had passed, my nephew had passed.

So, yeah Ï and I was going through a divorce. So

yeah, I noticed that I was drinking too heavy and I

talked to some of my family members, and they told

me that I need[ed] to slow it down, and thatÔs what

I did.

20. Mr. KempÔs assertions that he has curtail ed his alcohol consumption

and restricted himself to beer did not change Dr. IsermanÔs opinio n that

Mr. Kemp is unable to practice nursing with reasonable skill and safety:

A: Well, because as I indicated before, it doesnÔt

really make any difference about, you know, what

the source of the alcohol is. If he says all IÔm

drinking is beer, well, h ow much beer is he

drinking? Okay? And, you know, I suppose you

could go back and do another PEth test, but the

fact remains that the behavior hasnÔt changed.

Okay? I mean, this is not an individual, number

one, who sees himself as having a problem and so,

therefore Ï you know, thatÔs the great thing about

substance abuse, denial. I didnÔt do that. I donÔt

have a problem. You know, [why] are you coming at

me with this stuff? Okay? It allows them to

basically continue to go ahead, you know, act out,

you know , mistreat[ing] other people plus

themselves, or whatever it is that they do, and

basically not be bothered by it all. And if theyÔre in

denial, theyÔre not going to do anything about it.

Q: In your experience, do people with alcohol abuse

disorder tend to minimize their reports of how

much alcohol they drink?

A: Oh, routinely.

Q: Okay. At his deposition, Mr. Kemp stated that

he drinks a quart of beer at a time three to four

times a week. If Mr. KempÔs reports are true, would

your opinion that Mr. Kemp is not able to practice

nursing with reasonable skill and safety to patients

change?

A: No.

Q: Why not?

A: Well, again, I would say using myself as an

example, I know that if I put away a quart of beer

three to four times a week, I would not be doing

ve ry well. Any by the way, thereÔs an unwritten

rule, if you talk to somebody and you ask them how

[much] they drink Ï now, this is not scientific, and I

canÔt show it to you in a book. It goes with, you

know, experience with this stuff. Whatever [a]

person tells you that they drink, double it and you

might be at the lower end of what theyÔre really

doing.

2 1 . M r. Kemp underwent additional testing on June 15, 2021, and a

second PEth test returned a result of 243 nanograms per milliliter. That

result and oth er results (or lack thereof) from a second round of testing also

had no impact on Dr. IsermanÔs opinion regarding Mr. KempÔs ability to

practice nursing with reasonable skill and safety:

Q: Based on Mr. KempÔs [second] PEth test results,

has your opinion that Mr. Kemp is not able to

practice nursing with reasonable skill and safety to

patients changed?

A: No.

Q: Is the PEth t est result consistent with someone

who drinks a quart of beer three to four time s a

week?

A: IÔm thinking heÔs drinking more than that.

Q: Did Ï you mentioned that Mr. Kemp also tested

positive for an ETG test; is that correct?

A: Ethyl glucuronide. And actually, when we did

the original hair test, he came up positive for

marijuana. Now, when we sent him back for the

updated PEth t est and the urinalysis, we also sent

[him] back for another hair test. He arrived there

freshly shaven, so there was no hair to test.

However, we also have what are called nail tests.

Okay? And they can sometimes trace these things

back even further. Mr. K emp refused that test.

Q: Okay. And what does that indicate to you?

A: Well, it would indicate that if I had nothing to

hide or anything to be concerned about, you know,

my fingernails will grow back. I donÔt know why I

would refuse that test.

* * *

Q : Did [Mr. Kemp] take a urinalysis on June 15,

2021 as well?

A: Yes.

Q: And was that positive?

A: For ethyl glucuronide, yes.

* * *

Q: Does it show Ï does it tell you how Ï when the

last time someone consumed alcohol?

A: Unlike the phosphatidyl ethan ol, the hair

testing, the nail testing, and things like that which

can go back Ï nails can go back sometimes almost a

year, okay, but ethyl glucuronide does not hang

around that long. It is probably going to be gone I

would say within a week.

Q: So that positive test would mean that Mr. Kemp

had consumed alcohol in the last week, for

instance?

A: Recently. I mean, he would have to have had

something recently.

22. As for a treatment recommendation, Dr. Iserman would refer

Mr. Kemp to the Interventional Project for Nurses (ÑIPNÒ), which could lead

to an in - patient treatment program of at least 30 days. After completion of

such a program, Dr. Iserman would recommended toxicology monitoring, peer

meetings such as those in a 12 - step program, psychiatric tre atment, and

participation in a nursesÔ support group.

23. The findings set forth above amount to clear and convincing evidence

that Mr. Kemp is unable to practice nursing with reasonable skill and safety.

C ONCLUSIONS OF L AW

24. Pursuant to section 120.5 7(1), Florida Statutes, DOAH has

jurisdiction over the parties and subject matter of this proceeding.

25. A proceeding, such as this one, to impose discipline upon a license e, is

penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n . , 281 So. 2d

487, 491 (Fla. 1973). Accordingly, the Department must prove the charges

against Mr. Kemp by clear and convincing evidence. Dep't of Banking & Fin.,

Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34 (Fla.

1996)(citing Ferris v. Tu rlington , 510 So. 2d 292, 294 - 95 (Fla. 1987)); Nair v.

Dep't of Bus. & Prof'l Reg., Bd. of Med. , 654 So. 2d 205, 207 (Fla. 1st DCA

1995).

26. Regarding the standard of proof, the court in Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983), stated that:

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 in

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.

Id.

27. The Florida Supreme Cou rt later adopted the Slomowitz court's

description of clear and convincing evidence. See In re Davey , 645 So. 2d 398,

404 (Fla. 1994). The First District Court of Appeal has also followed the

Slomowitz test, adding the interpretive comment that "[a]lthough 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., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

28. Penal statutes must be construed in t erms 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 has been brought must be strictly construed, with any

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

Elmariah v. Dep't of Pro fÔl Reg., 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. DepÔt of Ins. & Treas. , 585 So. 2d 1009, 1013

(Fla. 1st DCA 1991).

29. The DepartmentÔs Administrative Compla int alleges that Mr. Kemp is

in violation of section 464.018(1)(j), by being unable to practice nursing with

reasonable skill and safety due to Ñsevere alcohol use disorder, post - traumatic

stress disorder, and depressive disorder.Ò

30. 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 alcohol, drugs, narcotics, chemicals, or

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

31. As discussed above, the Department proved by clear and convincing

evidence that Mr. Kemp is in violation of section 464.018(1)(j). Accordingly,

the analysis turns to the appropriate penalty given the circumstances of the

instant case.

32. Section 456.079 requires the Board of Nursing to adopt disciplinary

guidelines for specific offenses. Penalties must be consistent with any

disciplinary guidelines prescribed by rule. See Parrot Heads, Inc. v. DepÔt of

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

33. The Board of Nursing has adopted Florida Administrative Code Rule

64B9 - 8.006, which identifies the range of penalties for violations of chapter

464. The rule also sets forth aggravating and mitigatin g circumstances to

consider in determining the appropriate penalty.

34. Rule 64B9 - 8.006(3)(g) provides that the minimum penalty for a first -

time violation of section 464.018(1)(j) is a $250 fine, suspension, and IPN

evaluation. The maximum penalty is a $5 00 fine, suspension, or revocation.

35. Rule 64B9 - 8.006(5) sets forth aggravating and mitigating

circumstances that may be considered when determining an appropriate

penalty. While the Department has proven by clear and convincing evidence

that Mr. KempÔ s continued licensure as an LPN represents a danger to the

public, that aggravating circumstance is offset by the lack of any evidence of

actual damage caused by the violation.

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: (a) finding

Walter Lindsey Kemp, Jr., L.P.N. violated section 464.018(1)(j); (b) imposing

a $250 fine; and (c) suspending Mr. KempÔs licensed practical nursing license

until such time that h e enters into a monitoring contract with IPN and

complies with any and all terms and conditions imposed by IPN. 9

D ONE A ND E NTERED this 4th day of October, 2021 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

1230 Ap alachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of October, 2021 .

C OPIES F URNISHED :

Amanda M. Godbey, Esquire Walter Lindsey Kemp, Jr.

Department of Health 855 Limoges Way

4052 Bal d Cypress Way , Bin C - 65 Pensacola, Florida 32505

Tallahassee, Florida 32399 - 3265

Deborah McKeen, BS, CD - LPN

Kristen M. Summers, Esquire Department of Health

Department of Health Bin D - 02

Prosecution Services Unit 4052 Bald Cypress Way

4052 Bald Cypress Way , Bin C - 65 Tallahassee, Florida 32399 - 3252

Tallahassee, Florida 32399 - 3265

Joe Baker, Jr., Executive Director

Louise St. Laurent, General Counsel Department of Health , Board of Nursing

Department of Health 4052 Bald Cypress Way, Bin C - 02

4052 Bald Cypress Way, Bin C - 65 Tallahassee, Florida 32399 - 3252

Tallahassee, Florida 32399 - 3265

9 Section 456.072(4) provides that Ñ[i] n addition to any other discipline imposed through final

order, or citation, entered on or after July 1, 2001, under this section or discipline imposed

through final order, or citation, entered on or after J uly 1, 2001, for a violation of any

practice act, the board, or the department when there is no board, shall assess costs related

to the investigation and prosecution of the case.Ò

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 t his Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.