STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA STATE BOARD ) OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 80-115

)

PAUL I. PEREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tampa, Florida, before the Division of Administrative Hearings, by its dull designated Hearing Officer, Robert T. Benton, II, on August 9, 1980. Nobody appeared at the hearing on behalf of respondent. Petitioner was represented by counsel:

For Petitioner: Michael I. Schwartz, Esquire

Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301

By administrative complaint dated November 16, 1979, petitioner alleged that respondent was charged by information "with violations of Section 831.01 Section 893.13(3)(a)1, and Section 777.011, Florida Statutes" and that "[o]n or about June 30, 1979, the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, entered its Judgement of Guilt" against respondent on those charges, namely, for forging a prescription for 20 tablets of Biphetamine and obtaining amphetamine, a controlled substance, by "fraud, deceit, misrepresentation or subterfuge"; all in violation of "Section 464.0125(1)(c), Florida Statutes, in that . . . [respondent was] convicted . . . of a crime . . directly relating] to the practice of nursing or to the ability to practice nursing."

FINDINGS OF FACT

1. By information dated March 30, 1979, respondent gas accused of forging a prescription for 20 tablets of Biphetamine and of "feloniously acquir[ing] or obtain[ing], or attempt[ing] to acquire or obtain possession of a controlled substance, to-wit: Amphetamine" by means of the forged prescription, on or about December 13, 1978. Respondent's exhibit No. 1.

   
   

2. On June 20, 1979, respondent was convicted, on the basis of his guilty plea, of forgery and of obtaining a controlled substance by fraud; concurrent sentences of two years' imprisonment for each offense were imposed, but respondent was placed on probation. Department's exhibits Nos. 2 and 3.

   CONCLUSIONS OF LAW

   
   

3. Petitioner has charged respondent with a "violation of Section 464.0125(1)(c), Florida Statutes, in that the has] been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing. But there exists no Section 464.0125(1)(c) in Florida Statutes (1977) or in the 1978 Supplement or in Florida Statutes (1979). The language in the administrative complaint following the mistaken statutory citation seems to have been taken from Section 464.018(1)(c), Florida Statutes (1979), which became effective on July 1, 1979, after respondent was convicted.

   
   

4. In Florida, license revocation proceedings resembles criminal proceedings. The licensee has many of the same procedural rights that criminal defendants enjoy. The "right to remain silent applies not only to the traditional criminal case, but also to proceedings 'panel' in nature . . . that tend to degrade the individual's professional standing. State ex rel. Vining v. Florida Real Estate Com'n, 281 So.2d 487, 491 (Fla. 1973) overruling Kozerowitz v. Stack, 226 So.2d 682 (Fla. 1969) cert. den. 397 U.S. 147 (1970). Predicating disciplinary action against a licensee on one statutory subsection when another subsection has been pleaded "amounts to a denial of due process." Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923, 927 (Fla. 1st DCA 1977); 215 22nd Street, Inc. v. Board of Business Regulation, Division of Beverage of the Department of Business Regulation, 330 So.2d 821 (Fla. 1st DCA 1976). It follows that the administrative complaint in the present case cannot be the basis for disciplinary action against respondent.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint.

DONE and ENTERED this 14th day of May, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Michael I. Schwartz, Esquire Raymond LaPorte, Esquire Suite 201, Ellis Building 408 Madison Street

1311 Executive Center Drive Tampa, Florida 33602 Tallahassee, Florida 32301

Nancy Kelley Wittenberg, Geraldine B. Johnson, R.N. Secretary Investigation & Licensing. Department of Professional Regulation Coordinator 2009 Apalachee Parkway Board of Nursing Tallahassee, Florida 32301 111 Coast Line Drive East

Suite 504

Paul I. Perez, LPN. Jacksonville, Florida 32202 2301 W. Kirby

Tampa, Florida 33804

Docket for Case No: 80-000115

Orders for Case No: 80-000115