STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2086

)

DONALD J. MORRIS, L.P.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this cause on March 7, 1977, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1005 Blackstone Building

Jacksonville, Florida 32202

For Respondent: L. Haldine Taylor, Esquire

605 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

Gloria Jones, Field Representative Florida State Board of Nursing

6501 Arlington Expressway, Building B Jacksonville, Florida 32211

The Florida State Board of Nursing, herein sometimes called the Board or the Petitioner, seeks to revoke the licensee Donald James Morris, L.P.N., who holds license no. 34420-1, herein sometimes called the Respondent. By administrative complaint filed September 13, 1976, the Board charged that the Respondent is guilty of unprofessional conduct violative of Florida Statutes, Section 464.21(1)(b), (f) and (g) based on allegations that on or about August 9, 1976, he was arrested by the Jacksonville Sheriff's Office and charged with the felony of "lewd, lascivious or indecent assault or act upon or in the presence of a child" in violation of Florida Statutes, Section 800.04, in that he "removed all his clothing in the presence of a 10 year old female child and while nude masturbated himself in front of her". It was alleged further that on or about September 8, 1976, the Respondent entered a plea of guilty to the above charges in the Circuit Count, Fourth Judicial Circuit, to the above felony charge and was sentenced to a term of one year in the county jail. (See Petitioner's composite exhibit #2).

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record in this case, I make the following:

FINDING OF FACT

1. Donald J. Morris, the Respondent herein is a licensed practical nurse and is presently employed by UpJohn Laboratories. He was certified by the Board of Nursing during October of 1974. He retired from the U.S. Navy with an honorable discharge. On August 9, 1976, Respondent was arrested by officers of the Jacksonville Sheriff's Office and charged with the felony of "lewd, lascivious or indecent assault or act upon or in the presence of a child" in violation of Florida Statutes, Section 800.04, to wit, removal of his clothing in the presence of a 10 year old female child and while nude masturbated himself in front of her. Based on this charge, on September 8, 1976, in the Circuit Court, Fourth Judicial Circuit, Respondent entered a plea of guilty to the above charge and was sentenced to a term of one year in the county jail. On or about October 1, 1976, Respondent's counsel filed a motion to vacate and set aside the sentence. The Circuit Judge who imposed the sentence granted the motion to vacate on October 8, 1976 and the conviction and sentence was set aside. On October 8, 1976, the sentence was deferred from day to day and term to term and adjudication of guilt was withheld. (See Respondent's Exhibit #1).

   
   

2. Based on testimony adduced during the hearing, it appears that Respondent and Judith C. Kelchlin was involved in a relationship which lasted several months during which time they contemplated marriage. Mrs. Kelchlin had an 11 year old daughter who was, based on the testimony, quite friendly with the Respondent. According to Mrs. Kelchlin, her daughter advised that Respondent played with himself in her presence which made her (the daughter) become uncomfortable and the matter was referred to the State Attorney's Office for investigation. It is based on this complaint that the Respondent was charged for the above acts.

   
   

3. The Respondent denied that he engaged in the conduct as alleged and testified that his motivation for entering the guilty plea was to get the matter to a speedy hearing and thereby avoid the lengthy wait involved in getting his trial set on the calendar through the normal procedure. He testified that he was unable to make bail and based on plea negotiations, he was assured that based on his prior record, he would not have to serve any additional time.

   
   

4. Several witnesses appeared on behalf of the Respondent and attested to his competency and good moral character which was not seriously put at issue during the hearing. Rather, the Board based its authority to revoke the Respondent's license based on the information and the Respondent's plea of guilty.

   
   

5. Chapter 464, Florida Statutes, provides the procedure for suspending, annulling, revoking or otherwise disciplining a nursing practitioner for the reasons stated. Chapter 112.011(1)(b), provides that a person whose civil rights have been restored shall not be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession ... solely because of a prior conviction of a crime. However, the statute further provides that a person who has had his civil rights restored may be denied a license, permit, or certificate to pursue, practice, or engage in an ... profession, or business by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate

   is sought. Chapter 112.011, F.S., as amended by Chapter 73-109, Laws of Florida, appears to have no effect upon the disciplining of licensees or the suspension or revocation of licenses already issued. Thus if a licensee is convicted of a felony, his license would be subject to revocation under applicable regulatory statutes. See Page V. Watson 192 So. 2d 205 (1938). However, if the licensing agency does not revoke the license held by the convicted felon and such individual is pardoned or has otherwise had his civil rights restored during the intrim, it appears that the licensing agency has no authority to revoke such person's license unless that crime directly relates to the license held. Further, since licensing agencies can not deny licenses to former offenders, then, a fortiori, they may not disqualify such an applicant for example due to a lack of moral character and base such disqualification solely upon such prior conviction. In the case herein, there was no nexus established between the prior conviction and the license held by the Respondent. Based thereon, and in view of the complaint allegations that the Respondent was being charged based on the felony charge and the Respondent's plea of guilt which was set aside and adjudication withheld by the court, the undersigned concludes that the Board has no authority to revoke the Respondent's license based on the above charges which as evidenced by the record, reveal that adjudication was withheld.

   
   

   Based on the foregoing findings of fact and conclusions, I hereby make the following:

   
   

   CONCLUSIONS OF LAW

   
   

6. The parties to this proceeding were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

7. The authority of the Board is derived from Chapter 464, Florida Statutes.

   
   

8. Insufficient evidence was established at the hearing to prove that the Respondent had engaged in acts or conduct warranting revocation of his license based on alleged violations of Chapter 464.21(1)(b)(f) and (g), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law I hereby recommend that the complaint filed herein be dismissed in its entirety.

DONE AND ENTERED this 6th day of May, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 76-002086

Orders for Case No: 76-002086