Judges: K. N. AYERS
Agency: Department of Health
Latest Update: Nov. 18, 1983
Summary: Respondent shot longtime companion while off duty as nurse. Recommend dismissal, because it was a felony not related to nursing.
83-1271.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1271
)
LEAMON TUNETALE COX, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 28, 1983, at the Lake Correctional Institution, Clermont, Florida.
APPEARANCES
For Petitioner: Julia P. Forrester, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Leamon T. Cox, pro se
B-55 (41)
Post Office Box 99 Clermont, Florida 32711
By Administrative Complaint filed December 6, 1982, the Department of Professional Regulation, Board of Nursing, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Leamon T. Cox, Respondent, as a registered nurse. As grounds therefor it is alleged that by reason of having been found guilty of attempted murder and possession of a firearm while engaged in a felony, Respondent has been found guilty of crimes which directly relate to the ability to practice nursing.
At the hearing two witnesses were called by Petitioner, Respondent testified in his own behalf, and four exhibits were admitted into evidence. There is no dispute regarding the facts here involved. Proposed findings submitted by Petitioner and not included below were deemed immaterial or unnecessary to the results reached.
FINDINGS OF FACT
Petitioner was born February 22, 1924. He graduated from high school in 1942 and attended Rhode Island College School of Nursing from 1970 until graduation in 1974. At the time of his application for licensure by endorsement in Florida in 1976, Cox was registered in Rhode Island and Connecticut.
On his application he listed Lois Cox as his wife. At the hearing Respondent testified he and Lois Cox were never married. Exhibit 2 states they had lived together for about seven years when, in late November of 1981, Lois Cox moved to a different address in Lauderhill, Florida.
On January 6, 1982, Respondent came to the residence of Lois Cox, asked to speak to her outside in the vicinity of his car, and after some discussion Respondent took a pistol from his car and shot Lois Cox several times in the head and shoulder. On September 24, 1982, Respondent was found guilty of attempted murder II (lesser) and possession of a firearm while engaged in a felony offense. He was sentenced to be imprisoned for 25 years (Exhibit 3).
Respondent worked through PRN, Inc., for two years immediately preceding his arrest, in various hospitals in Broward County. No complaints were ever received regarding Respondent's professional performance, and evaluations by supervisory personnel were good (Exhibit 4). No evidence was presented that Respondent had ever been convicted of any other crime.
Petitioner presented one witness, Mrs. Geraldine Johnson, who qualified as an expert, to opine that the offenses of which Respondent had been found guilty directly affects the ability to practice nursing. Her rationale for this opinion is that a nurse is supposed to help, not hurt, a patient; and often a nurse is placed in a position where the nurse must defend against the patient and in so doing the nurse must not react in a violent manner. Ergo, one who has been found guilty of attempted murder has demonstrated such violent tendencies that he no longer has the ability to practice nursing. This expert witness is the Supervisor of Investigative Services, Region II of the Department of Professional Regulation, and she, and the investigators working under her supervision, investigate complaints against nurses and submit reports from which the bases for the probable cause determinations are made by the probable cause panel of the Board of Nursing. This opinion is rejected as beyond the expertise of the witness.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The sole issue in this case is whether attempted murder, with no nexus to the nursing profession, relates to the practice of nursing so as to authorize the revocation of a nurse's license.
Section 466.018, Florida Statutes (1981), provides in pertinent part:
The following acts shall be
grounds for disciplinary action set forth in this section:
* * *
(c) Being 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.
The predecessor statute [to Chapter 79-225, Laws of Florida], was Section 464.21, Florida Statutes (1977) which provides in pertinent part:
Conviction of a felony in the courts of this state or conviction of any offense in another jurisdiction which, if committed in this state, would
be deemed a felony, shall also con- stitute a ground for such denial
or discipline.
When the Legislature amends a statute by omitting words, it is presumed the Legislature intended the statute to have a different meaning than that accorded it before the amendment. Capella v. Gainesville, 377 So.2d 658 (Fla. 1979). With regard to a statutory amendment, the rule of construction is to assume that the Legislature intended the amendment to serve a useful purpose. Likewise, when a statute is amended, it is presumed the Legislature intended it to have a meaning different to that accorded it before the amendment. Carlisle
v. Games and Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977).
It is elementary that it is the function of the court to ascertain and give effect to the legislative intent in enacting a statute. In applying this principle certain rules have been adopted to guide the process of judicial thinking. The first of these is that the Legislature is conclusively presumed to have a working knowledge of the English language and, when a statute has been drafted in such a manner as to clearly convey a specific meaning, the only proper function of the court is to effectuate this legislative intent. Consumer Product Safety Committee v. GTE Sylvania, 447 US 102, 64 L.Ed 2d 766, 100 S.Ct 2051 (1980); Leadership Housing, Inc. v. Department of Revenue, 336 So.2d 1239 (Fla. 4th DCA 1976).
It is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a review of the whole law in para materia, the court will determine legislative intent. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla. 1977).
In 1973 other provisions of the Florida statutes were revised. Specifically, Chapter 73-109, Laws of Florida 1973, Section 112.011(1)(b), Florida Statutes, provided that a felony conviction shall not disqualify one whose civil rights have been restored from engaging in an occupation, profession, trade, or vocation for which a license, permit, or certificate is required to be issued by the state. In Op. Atty. Gen. 073-355 the attorney general opined that such a person's license may not lawfully be revoked under Section 464.21(1)(g), Florida Statutes, above-quoted, unless such a felony is directly related to the practice of the licensee's profession.
In the same session the Legislature amended Chapter 464 it also amended Chapter 455 (Chapter 79-36, Laws of Florida 1979). In this revision grounds for disciplinary action against a licensee includes:
455.227(1)(c) The licensee has been convicted of a felony which relates to the practice of his profession.
The legislative history of an act is important to the courts only when there is doubt as to what is meant by the language employed. Rinker Materials Corp. v. North Miami, 286 So.2d 552 (Fla. 1973).
Applying all of these principles to the statute at hand it is clear that the Legislature intended to do away with the provision that a license may be revoked if the licensee has been convicted of a felony. The crime of which the licensee has been convicted must relate to the profession or to the licensee's ability to practice that profession before such license may be revoked.
One final rule of statutory construction is that agency determinations with regard to a statute's interpretation and application will normally be accorded great deference unless there is clear error or conflict with the intent of the statute. Sans Souci v. Florida Division of Land Sales, 421 So.2d 623 (Fla. 1st DCA 1982).
For the purposes of this Recommended Order, it is accepted that Mrs. Johnson's expert testimony in this case represents the agency's interpretation of Section 464.018(1)(c), viz, that the crime of attempted murder relates to the licensee's ability to practice nursing. Unless this interpretation is clearly erroneous or conflicts with the intent of the statute, it should be followed.
The crime for which Respondent was found guilty involves the shooting of a woman he listed as his wife on his application for licensure in Florida. She was not a patient or in any manner related to Respondent's profession as a registered nurse. The incident may more accurately be described as a crime of passion involving family members in a marital dispute. Accordingly, it is clear that this crime was not directly related to the practice of nursing; therefore, to subject Respondent's license to revocation, the crime must relate to the ability of Respondent to practice nursing.
"Ability" is defined in Webster's New Twentieth Century Dictionary, Unabridged Second Edition (1980) as:
power to do (something physical or mental).
riches, wealth or substance, which are the means, or which furnish the powers, of doing certain acts (Rare.)
the state or quality of being able.
[usually in pl.] power of the mind; also special skills.
talent.
civil or legal power, the power or right
to do certain things; as ability to inherit.
Syn. Capacity, skill, talent, aptitude.
Despite his conviction, Respondent's power to perform nursing duties, either physical or mental, is not diminished; nor is his status of being able to perform such duties. No evidence was submitted that his talent as a nurse was diminished by this incident; nor was his capacity or skill. The only synonym remaining which could relate to the ability to practice nursing is aptitude. Thus, we are left with the question, whether one crime of passion involving a close relative destroys or severely dilutes a licensee's aptitude as a nurse.
The facts here involved must be kept in the proper perspective. Respondent is a 59-year-old male serving a 25-year sentence of imprisonment.
With good behavior Respondent could be paroled in less than six years. Under a work release program he could be released sooner. He would be more likely to qualify for a work release program as a registered nurse than as one without a license. The crime he committed is unlikely to be repeated against someone else; particularly, when one considers this is, presumably, the only violent crime he ever committed. No evidence was submitted from which a conclusion can be drawn that Respondent has violent propensities other than his conviction for this one offense.
As noted above, the interpretation of Section 464.018(1)(c) by the Board of Nursing is entitled to great weight unless clearly in conflict with the intent of the statute. The intent of the statute is clear that, in order to revoke a license because of the commission of a crime by the licensee, the crime must relate to the licensee's profession. Under the facts of this case it cannot be said that conviction of attempted murder relates to the practice of nursing or to Respondent's ability to practice nursing.
That various professions would like to rid their ranks of convicted felons is understandable; however, the Legislature has imposed the requirement that the crime must be related to the practice of the profession or to the ability of the licensee to practice his profession before disciplinary action can be taken against the licensee. Although one witness opined that being convicted of attempted murder is related to the ability to practice nursing, this is not an opinion only an expert can voice, but one that can be formed by a lay person with a general understanding of the duties performed by nurses. Furthermore, this witness testified as an expert in the practice of nursing.
She did not testify as an expert in psychiatry, psychology, or any other discipline that would qualify her to give an opinion that conviction of certain crimes unrelated to the practice of nursing demonstrates a licensee's future inability to practice nursing.
From the foregoing it is concluded that conviction of attempted murder under the circumstances here involved is not a crime relating to the practice of nursing or of Respondent's ability to practice nursing. It is therefore
RECOMMENDED that the charges against Leamon T. Cox be dismissed and this case CLOSED.
ENTERED this 6th day of September, 1983, at Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 6th day of September, 1983.
COPIES FURNISHED:
Julia P. Forrester, Esquire Department of Professional Regulation
130 North Street Tallahassee, Florida 32301
Leamon T. Cox B-55 (41) Post Office Box 99 Clermont, Florida 32711
Helen P. Keefe, Executive Director Board of Nursing
Department of Professional Regulation
Room 504, 111 East Coastline Drive
Jacksonville, Florida 32202
Fred M. Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION
BOARD OF NURSING
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 21025
DOAH CASE NO. 83-1271
LEAMON T. COX,
Respondent.
/
ORDER
Respondent, Leamon T. Cox, holds Florida license No. 88174-2 as a registered nurse. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the license.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board
pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.
The Board of Nursing met on October 13. 1983, in Miami, Florida, to take final agency action. The Respondent made no appearance.
The Board adopts paragraphs 1 through 4 of the Recommended Order's findings of fact as its own findings of fact.
With the exception of the last sentence, the Board adopts paragraph 5 of the findings of fact of the Recommended Order as a conclusion of law and as its own statement of a reason that the crime committed by Respondent violates the Nurse Practice Act.
The Respondent is guilty of a crime which directly relates
to the practice of nursing and therefore has violated Section 464.018(1)(c), F.S.
The license of Leamon T. Cox is hereby REVOKED. No sooner than five years from the date of this order, the licensee may petition for reinstatement at which time the burden will be on the licensee to demonstrate, to the satisfaction of the Board, the present ability to safely engage in the practice of nursing.
Within thirty days the licensee shall return his license to the Board Office, 504 Daniel Building, 111 Coastline Drive East, Jacksonville, Florida 32201 or shall surrender the license to an investigator of the Department of Professional Regulation.
DONE AND ORDERED in Jacksonville, Florida, this 14th day of March 1983.
FLORIDA BOARD OF NURSING
Sandra S. Bauman, Chairman
cc: Leamon T. Cox
Lake Correctional Institution
P.O. Box 99
Clermont, Florida 32711
K. N. Ayers, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
Docket for Case No: 83-001271
Orders for Case No: 83-001271
| Issue Date |
Document |
Summary |
|
Nov. 14, 1983 |
Agency Final Order
|
|
|
Sep. 06, 1983 |
Recommended Order
|
Respondent shot longtime companion while off duty as nurse. Recommend dismissal, because it was a felony not related to nursing.
|
