99-004871 Department Of Health, Board Of Nursing vs. Stephen Caponey Status: Closed Recommended Order on Thursday, June 22, 2000.

Summary: Respondent is guilty of entering plea of nolo contendere to crime directly relating to the practice of nursing; he demonstrated plea was of convenience and his license should not be revoked; license was suspended, followed by probation with conditions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 99-4871

)

STEPHEN CAPONEY, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

A formal hearing was held in this case before Daniel M.

Kilbride, Administrative Law Judge of the Division of

Administrative Hearings on March 30, 2000, in Orlando, Florida.

APPEARANCES

For Petitioner: Reginald D. Dixon, Esquire

Christopher J. Steinhaus, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: W. Ford Duane, Esquire

Hannah, Estes, & Ingram, P.A.

Post Office Box 4974

Orlando, Florida 32802-4974

STATEMENT OF THE ISSUES

Whether Respondent was guilty of entering a plea of nolo

contendere to, regardless of adjudication, a crime in any

jurisdiction which directly relates to the practice of nursing or

the ability to practice nursing.

PRELIMINARY STATEMENT

On October 19, 1999, Petitioner filed an Amended

Administrative Complaint against Respondent's license to practice

nursing. On November 10, 1999, Respondent filed an Election of

Rights form disputing material facts asserted in the Amended

Administrative Complaint and requesting a formal evidentiary

hearing before the Division of Administrative Hearings pursuant

to Sections 120.569 and 120.57, Florida Statutes. Following

hearings on the motions, Petitioner's Motions to Relinquish

Jurisdiction were denied.

At the hearing, the Pre-hearing Stipulation and Amendment

thereto were made part of the record and official recognition was

given to Section 395.0197(8), Florida Statutes. Petitioner's

Motion in Limine was denied. Respondent's Motion to Dismiss on

Constitutional grounds was denied for lack of jurisdiction.

Petitioner called one witness and offered into evidence one

exhibit; the exhibit was admitted. Respondent called two

witnesses and offered into evidence 32 exhibits; seven of

Respondent's exhibits were admitted in evidence.

The Transcript was filed on April 19, 2000. Each party

timely filed proposed recommended orders. Each of the parties'

proposals have been given careful consideration in the

preparation of this order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of nursing pursuant to law.

2. Petitioner has contracted with Agency for Health Care

Administration to provide consumer complaint, investigative, and

prosecutorial services required by the Division of Medical

Quality Assurance, councils, or boards, as appropriate.

3. Respondent is, and has been at all times material

hereto, a licensed registered nurse in the State of Florida,

having been issued license number RN3044882.

4. Respondent's last known address is 2216 India Boulevard,

Deltona, Florida 32738.

5. In April 1997, Respondent provided nursing care to

Patient C.S.

6. In June 1997, Respondent provided nursing care to

Patient J.F.

7. Patients C.S. and J.F. both filed complaints with the

Orlando Police Department alleging that Respondent had

inappropriately touched their breasts.

8. Respondent was charged by Direct Information with

Battery and Sexual Battery.

9. On April 13, 1999, Respondent entered a plea of nolo

contendere in Ninth Judicial Circuit in and for Orange County,

Florida, to one count of Lewd or Lascivious Offense Committed

upon an Elderly or Disabled Adult.

10. On April 13, 1999, in the same court, Respondent

entered a plea of nolo contendere to one count of Sexual Battery.

11. The court withheld adjudication in the aforementioned

cases and placed Respondent on five years' probation. One of the

terms of the probation ordered Respondent to have no contact with

patients C.S. or J.F. during the probationary period.

12. The crime of Lewd or Lascivious Offense Committed upon

an Elderly or Disabled Adult is a crime directly related to the

practice or the ability to practice nursing.

13. The crime of Sexual Battery is a crime directly related

to the practice or the ability to practice nursing.

14. Respondent has been evaluated by two psychologists. He

was evaluated by Dr. Michael Herkov in May 1998, one week after

his arrest. Dr. Herkov was selected by the prosecutor. In June

1999, Respondent was evaluated by Dr. Deborah O. Day after

entering pleas nolo contendere to the offenses of lewd of

lascivious conduct upon an elderly or disabled person and sexual

battery. Dr. Day was selected by Respondent's criminal defense

attorney.

15. Dr. Herkov's report was not offered in evidence, nor

did he testify.

16. Dr. Day performed her evaluation pursuant to a Circuit

Court Order, which directed that she address the following

issues:

a. Whether the Defendant presents a risk to

society (i.e., repeat conduct, etc.).

b. Whether the Defendant suffers from a

personality defect, and if so, what?

c. Whether the Defendant has a sexual

disorder.

d. If treatment is indicated, then type and

length of such treatment, if indicated, shall

be a condition of probation. If treatment is

indicated, the Defendant shall be allowed to

practice nursing, but shall not be allowed to

have patient contact while on probation. If

treatment is not indicated, then the

prohibition against patient contact condition

shall be of no force or effect.

17 . Dr. Day evaluated Respondent based on information

provided to her by Respondent and his criminal defense attorney

and conducted a battery of seven psychological tests and

conducted clinical interviews of the Respondent.

18. Dr. Day's testified, in ans wer to the issues framed in

the Circuit Court Order are, as follows:

a. Respondent has above average

intelligence, and had a successful career in

nursing prior to the allegations against him.

Further, he was unemployed when she saw him,

and presented as a well defended individual.

He wasn't forthcoming on all points, but

became more conversational in the interviews.

Dr. Day attributed this suspicion to anger

over the process and his lack of trust. The

psychological testing revealed a lack of any

psychopathology or major mental illness.

b. Respondent has no diagnosable disorder.

c. There was no diagnosable sexual disorder,

and he was functioning in the expected range

regarding sexuality. Dr. Day recommended

short term supportive psychotherapy to deal

with Respondent's anger, suspiciousness and

lack of trust, but made it clear that was

unrelated to any sexual disorder which she

did not find to be present.

d. The evaluation did not suggest the

existence of any high risk sexual behavior

disorders or personality defect.

e. Finally, there appears to be no reason

that Respondent can not practice in his area

of specialty.

19. Dr. Day concluded that there was no "need for treatment

related to any high-risk sexual behavior, disorder or personality

defect" and there did not appear to be any "reasons that he

cannot practice in his area of specialty." The conclusions of

Dr. Day are credible.

20. Dr. Day's methodology in performing the evaluation of

Respondent satisfactorily met the recognized criteria for

evaluations in the field of professional sexual misconduct as it

relates to the ability to practice nursing.

21. Linda L. Smith was recognized as an expert in the area

of professional sexual misconduct as it pertains to nursing.

After reviewing the evaluations conducted by Dr. Day and Dr.

Herkov and the collateral investigative materials, including the

various witness statements and medical records, she opined that

Respondent "is not currently safe to practice nursing."

22. Ms. Smith was offered to dis agree with the methodology

employed by Dr. Day, but not her opinions. In her opinion a

proper evaluation requires an evaluator to pour through all of

the underlying evidence, depositions, medical records, and

everything of a similar nature. She also opined that it is

equally important for an evaluator to know if the nurse did not

do something he or she was accused of doing.

23. Ms. Smith agreed there was clear evidence that

Respondent didn't do some of the things he was accused of doing.

24. Ms. Smith 's opinion is substantially predicated upon

Dr. Herkov's evaluation, which was not offered into evidence by

Petitioner and is hearsay, and which was essentially predicated

upon allegations of wrongdoing in Florida and New York prior to

any evidentiary predicate. Further, Ms. Smith acknowledged that

at the time of Dr. Herkov's evaluation, the evidence resulting in

the dismissal of the New York case was not in existence.

25. As part of his mitigation, Respondent explained his

reasons for entering pleas of nolo contendere while specifically

denying his guilt on the record. Respondent reiterated that he

is not guilty, but the gravity of the consequences of an adverse

jury verdict was so severe, he opted for certainty by entering

pleas of convenience.

26. P art of Respondent's reasons for his pleas of

convenience was predicated upon a charge in New York for conduct

that did not occur, but was dismissed before his plea of

convenience.

27. As a result of the allegations against him, Respondent

was held out to public ridicule in the newspaper and on

television.

28. Respondent has not worked as a nurse since he

voluntarily agreed to refrain from practice, and has effectively

been rendered unemployable due to having to register as a sex

offender even though he was not adjudicated guilty of a crime,

nor was there any finding of guilt.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties. Sections

120.569 and 120.57(1), Florida Statutes.

30. Petitioner is the state agency charged with regulating

the practice of nursing pursuant to Section 20.43, Chapters 455,

and 464, Florida Statutes.

31. Disciplinary license proceedings are penal in nature.

State ex rel. Vining v. Florida Real Estate Commission , 281 So.

2d 487 (Fla. 1973). Petitioner must prove the material

allegations in the Amended Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance, Division

of Securities and Investor Protection v. Osborne, Stern and

Company , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

32. Petitioner has proved by clear and convincing evidence

that on April 13, 1999, Respondent enter a plea of nolo

contendere to one count of Lewd or Lascivious Offense Committed

upon an Elderly or Disabled Adult, and to one count of Sexual

Battery.

33. Petitioner has proved by clear and convincing evidence

that the crimes of Lewd or Lascivious Offense Committed upon an

Elderly or Disabled Adult and Sexual Battery are crimes directly

related to the practice or the ability to practice nursing.

34. Petitioner has proved by clear and convincing evidence

that Respondent has violated Section 464.018(1)(c), Florida

Statutes (1997).

35. Section 464.018(1)(c), Florida Statutes, provides that

the Board of Nursing may discipline a licensee for being

convicted or found guilty of, or entering a plea of nolo

contendere to, regardless of adjudication, a crime in any

jurisdiction which directly relates to the practice of nursing or

the ability to practice nursing.

36. Rule 64B9-8.006(3), Florida Administrative Code,

provides a penalty range for violations of Section 464.018(1)(c),

Florida Statutes, of:

[f]rom fine of $500, referral to IPN, two

years' suspension and probation for the

duration of court ordered probation to

revocation and $1000 fine.

37. Rule 64B9-8.006(4), Florida Administrative Code,

provides that the Board of Nursing may deviate from the

disciplinary guidelines set forth in Rule 64B9-8.005(3), Florida

Administrative Code, upon a showing of aggravating or mitigating

circumstances, by clear and convincing evidence.

38. Petitioner submitted no evidence of aggravating

circumstances, beyond the facts proven in this case.

39. The following facts in mitigation were established by

Respondent:

a. Respondent's pleas of nolo contendere

were pleas of convenience wherein Respondent

specifically denied his guilt, and continues

to maintain that he did not inappropriately

touch J.F. or C.S.

b. Respondent testified in mitigation that

the consequences of the charges and his pleas

were:

1. Being held out to public ridicule in the

media.

2. Not being able to practice nursing since

December 1997.

3. Having to register as a sex offender

while never having been convicted or found

guilty of anything; and

4. Being rendered virtually unemployable.

c. Respondent was evaluated by

Dr. Deborah D. Day pursuant to a Circuit

Court Order, in June of 1999.

d. Dr. Day's opinions in answer to the

issues framed in the Circuit Court Order as

that the evaluation did not suggest the

existence of any high risk sexual behavior

disorders or personality defect, and finally,

there appears to be no reason that Respondent

can not practice in his area of specialty.

e. The opinions of Dr. Day are credible.

f. Petitioner's rebuttal expert witness,

Linda L. Smith, was offered to disagree with

the methodology employed by Dr. Day, but not

her opinions. In Ms. Smith's opinion, one of

the critical concerns in evaluating a nurse

whose fitness is drawn into question by

virtue of an allegation of wrongdoing or

improper conduct, is whether or not the

underlying conduct occurred. Of equal

importance to Ms. Smith is for an evaluator

to know if the nurse did not do something

they were accused of doing.

g. There is no clear and convincing record

evidence that Respondent committed the

underlying acts.

h. Ms. Smith agreed that there was clear

evidence that Respondent didn't do some of

the things he was accused of doing, and

agreed that a good example was the Sandra

Davis sexual battery case, which was

voluntarily dismissed before Respondent's

pleas.

i. Ms. Smith also acknowledged that at the

time of Dr. Herkov's evaluation, the evidence

resulting in the Dismissal of the New York

case was not in existence.

j. Ms. Smith's opinion that Respondent is

not currently safe to practice nursing, is

substantially predicated upon Dr. Herkov's

evaluation, which was not offered into

evidence by Petitioner, and which was

essentially predicated upon allegations of

wrongdoing in Florida and New York prior to

any evidentiary predicate. Consequently, the

complaint of Ms. Smith regarding Dr. Day's

methodology appears to be equally applicable

to Dr. Herkov, because his evaluation did not

consider all of the information in both

cases, not did he concern himself with

whether or not the alleged conduct occurred.

Therefore, Petitioner has not provided clear

and convincing evidence that Respondent is

not currently safe to practice nursing,

Ms. Smith's opinion notwithstanding.

k. Respondent entered his nolo contendere

pleas of convenience and opted for certainty

because he had lost confidence in the system

after being charged with crimes he did not

commit.

RECOMMENDATION

Based on the foregoing facts and conclusions of law, it is

RECOMMENDED that a Final Order be entered by the Board of

Nursing finding Respondent guilty of violating Section

464.018(1)(c), Florida Statutes, and imposing the following

discipline on Respondent's license:

a. Respondent's license to practice nursing

in the State of Florida, be suspended for two

years, nunc pro tunc October 19, 1999,

followed by probation for the duration of the

court ordered probation.

b. Prior to returning to the practice of

nursing, Respondent shall pay a fine in the

amount of $500.00 to the Board of Nursing.

c. Prior to returning to the practice of

nursing, Respondent shall complete 24 hours

of nursing continuing education in the area

of sexual misconduct or nursing boundaries.

These hours shall be in addition to those

required for renewal of Respondent's nursing

license.

d. Prior to returning to the practice of

nursing, Respondent shall, pursuant to Rule

64B9-8.011(2)(c) submit an evaluation by a

psychiatrist or psychologist approved by the

Intervention Project of Nurses (IPN) which

attests to the nurse's present ability to

engage in safe practice, or conditions under

which safe practice can be attained. If the

evaluation indicates that the Respondent is

able to practice nursing with reasonable

skill and safety to patients and in

accordance with the laws of Florida, the

suspension shall be lifted and the Respondent

shall be allowed to practice nursing under

the monitoring and supervision of I.P.N.

DONE AND ENTERED this 22nd day of June, 2000, in

Tallahassee, Leon County, Florida.

_____________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Fili ng [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of June, 2000.

COPIES FURNISHED:

Reginald D. Dixon, Esquire

Christopher J. Steinhaus, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

W. Ford Duane, Esquire

Hannah, Estes & Ingram, P.A.

Post Office Box 4974

Orlando, Florida 32802-4974

Ruth Stiehl, Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

A ngela T. Hall, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

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.