STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3943

)

JAMES E. CULLIFER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Bonifay, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on January 18, 1988, and finished the following day. On March 23, 1988, the Division of Administrative Hearings received the hearing transcript.

Thereafter, the parties filed proposed findings of fact and conclusions of law. The attached appendix addresses proposed findings of fact by number.

The parties are represented by counsel: For Petitioner: John R. Perry

2639 North Monroe Street Tallahassee, Florida 32303

For Respondent: Bonnie K. Roberts

Post Office Box 667 Bonifay, Florida 32425

By administrative complaint dated July 24, 1987, petitioner alleges that respondent James E. Cullifer's certification as an emergency medical technician should be revoked because he has "violated section 401.411(1)(d), F.S "

The administrative complaint alleges that

Evidence of the above includes, but is not limited to the following:

1. On the evening of February 13, 1986, Respondent [Cullifer] did give a local citizen two marijuana cigarettes.

2. On February 13, 1986, Respondent [Cullifer] was arrested for possession of marijuana, while on duty as an Emergency Medical Technician for Holmes County Ambulance Service.

The administrative complaint also alleges that Mr. Cullifer "violated section 401.27(1), F.S., and section 10D-66.049(2)d, F.A.C., in that on February 7, 1986, . . . [he] left a patient unattended in the patient compartment of an

ambulance." Finally, the administrative complaint alleges a violation of "section 401.411(1)(g), F.S." for failure to conform to minimum prevailing standards of acceptable practice.

In a separate administrative complaint dated the same day, petitioner alleges that respondent Wiley R. Sprayberry's certification as an emergency medical technician should be suspended for six months, because he violated the same statutes and rules, but the administrative complaint alleges that Mr.

Sprayberry drove the ambulance on February 7, 1986, and makes no allegation that he ever gave anybody marijuana cigarettes.

Each administrative complaint was met with a petition for formal hearing and answer to administrative complaint. In accordance with section 120.57(1)(b)3., Florida Statutes (1987), the Department of Health and Rehabilitative Services (HRS) transmitted the matters to the Division of Administrative Hearings separately. HRS' motion to consolidate the present case with Case No. 87-3944 for purposes of hearing only, filed January 13, 1988, was granted without objection on January 18, 1988. (T.2).

ISSUE

Whether HRS should revoke respondent Cullifer's certification as an emergency medical technician or take other disciplinary action, for the reasons alleged in the administrative complaint?

FINDINGS OF FACT

1. At one time, James E. Cullifer had charge of the Holmes County Ambulance Service in Bonifay. The parties are in apparent agreement that he has held emergency medical technician certification No. JT 0003257, at all pertinent times.

   
   

   Search Warranted

   
   

2. It was freezing cold at about ten o'clock on the night of February 13, 1986, when Eric Adams, Kenneth Allen Tate, Jerry Eldridge and Jesse Joyner, all of the Holmes County Sheriff's Department, arrived to execute a search warrant at the "ambulance shack," the building that Holmes County emergency medical technicians occupied between ambulance runs.

   
   

3. The warrant issued earlier the same day, on the strength of an affidavit Wilburn G. Baker had executed that morning at the state attorney's office. (T. 343-4).

   
   

4. Mr. Baker's visit to the state attorney's office followed a stormy meeting of the Holmes County Ambulance Service emergency medical technicians. During one such meeting Mr. Baker told Messrs. Sprayberry and Cullifer "that he wished neither one of them had worked there . . . " (T. 195)

   
   

5. Wilburn Baker, who obtained his certification as an emergency medical technician in 1978, took over as director of the Holmes County Ambulance Service when Mr. Cullifer "stepped down on his own" (T. 207) in 1985. Mr. Baker was already on board when Wiley R. Sprayberry began, in 1983.

   
   

6. Affidavit and warrant notwithstanding, a motion to suppress evidence obtained in the February 13, 1986 search was later granted in the criminal

   proceeding in which Messrs. Sprayberry and Cullifer were accused of marijuana possession on that night. The criminal prosecution was subsequently abandoned altogether.

   
   

7. Apparently, however, on the night of the search, the authorities did not foresee these developments. They had, indeed, invited television crews and other media representatives to be on hand to witness them apprehend the respondents, whom Mr. Baker assured them they would find in possession of marijuana.

   
   

   Gunfire But No Bloodshed

   
   

8. As law enforcement personnel, including a dog handler, gathered outside, Messrs. Cullifer and Sprayberry lay in beds inside the ambulance shack, covers drawn, watching a television news program. They had returned not long before from taking a Mr. Whitaker to Dothan.

   
   

9. Among those outside the ambulance shack was Mr. Baker. Some hours before the fact (T. 349), the sheriff's office told him when the search was to take place, so that other ambulance attendants could fill in for the respondent and Mr. Sprayberry when they were arrested.

   
   

10. After knocking and announcing their intention to execute a search warrant, Officers Adams, Tate and Eldridge entered the ambulance shack. Mr. Sprayberry remained in bed during the reading of the search warrant, but Mr. Cullifer took the opportunity to get dressed.

    
    

11. Mr. Cullifer followed Officer Adams outside. As they walked with Officer Tate toward Mr. Cullifer's black Jeep, Officer Adams asked for the keys to the vehicle. Mr. Cullifer answered that "it's not even locked, anybody could have put anything . . . in there." (T. 371) Although the Jeep, "a hunting type vehicle," (T. 263) was capable of being locked, "you could pick the door up and s[e]t it off" (T. 272) and Mr. Cullifer never locked it when he parked it outside the ambulance shack.

    
    

12. Instead of giving Officer Adams the keys, respondent Cullifer opened the unlocked door of the Jeep, got inside, inserted a key in the ignition lock, and started the engine. Standing beside the driver's seat and facing him, Officer Adams reached for the keys with his left hand, but Cullifer drove forward, knocking Adams backward, although not down.

    
    

13. When his orders to halt went unheeded, Officer Adams fired three shots. A bullet lodged in the back of the driver's seat as the Jeep sped from sight.

    
    

    Cannabis Traces

    
    

14. In reaching (unsuccessfully) for the car keys, Officer Adams spotted a large, transparent bag under the driver's seat containing a "[g]reen leafy substance" (T. 13) that resembled marijuana. It was on account of this that he felt justified in firing on Mr. Cullifer, whom he took to be a fleeing felon. Whether the bag was of the "Zip-Loc" type he could not determine.

    
    

15. Perhaps five minutes after he left, Mr. Cullifer returned, to be greeted by Officer Tate who wrestled him to the ground and handcuffed him. In the ensuing search of the Jeep, Officers Tate and Joyner "found a roach and all sorts of residue of marijuana." (T. 15)

16. Meanwhile, inside the ambulance shack, respondent Sprayberry had decided to get dressed after all. He had just buckled his belt when he heard gunshots outside. Curious, he started for the door, only to have Officer Eldridge slam him against the wall. He was leaning against the wall, arms outstretched, when the telephone rang. Somebody from the hospital wanted to know what was happening at the ambulance shack.

    
    

17. Still inside the ambulance shack, Mr. Sprayberry was asked for the keys to his car. Saying they were not needed since he had left his car unlocked, Mr. Sprayberry nevertheless threw his keys to a sheriff's officer. In fact, however, the Sprayberry car was locked when Officer Adams tried to gain access before going for the key. A search of Mr. Sprayberry's car yielded "cannabis traces," (T. 15) in the form of a cigarette butt or roach.

    
    

18. With the help of a specially trained dog, sheriff's officers also searched the ambulance shack. Officer Tate recalled the dog's signalling suspiciously while sniffing a certain filing cabinet drawer, but nobody even opened the drawer at the time. Except inside the vehicles, no marijuana was found.

    
    

19. City police arrived in response to reports of gunfire. "[T]here w[ere] cameras everywhere and lights everywhere." (T.311) Mr. Baker, among others, was interviewed by the press, but he was unable to say at hearing whether a newspaper had quoted him correctly to the effect that the arrests came as a surprise to him. (T. 350-354)

    
    

20. During the years he had known them, Mr. Baker never saw either Mr. Cullifer or Mr. Sprayberry in possession of marijuana. (T. 158). He nevertheless came to believe that they used marijuana, or so he testified. This belief he claimed sprung from statements he attributed to Mr. Cullifer, who denied making them, and from leafy matter and paraphernalia he said he found at the ambulance shack.

    
    

21. But emergency medical technician Robert Mitchell Taylor, who has worked for the Holmes County Ambulance Service for nine years, testified that he never saw "any indication that anybody had possessed marijuana at the ambulance shack." (T. 197) Donnie Ray Brock, a paramedic who worked for the Holmes County Ambulance Service from `78 or `9, through `86 sometime (T. 204) testified that, during his employment there, he never had reason to believe that Messrs. Cullifer or Sprayberry "possessed marijuana while at the ambulance shack." (T. 205-6)

    
    

22. Judith Sharon Braxton, aside from Messrs. Baker, Cullifer and Sprayberry, the only other Holmes County Ambulance Service employee who testified, said she had never seen Mr. Cullifer or Mr. Sprayberry in possession of marijuana, although she conceded she probably would not recognize marijuana if she saw it. (T. 216)

    
    

    Attending a Patient

    
    

23. On February 7, 1986, respondents transported a 79 year- old man from the hospital in Bonifay to Bay Memorial Medical Center in Panama City. As they left Doctors Memorial Hospital shortly after five o'clock in the afternoon, Mary Elizabeth "Libby" Streep Kolmetz, R.N., Director of Nurses, noticed that "down to the corner, they both remained in the front seat." (T. 73) Mr. Sprayberry was

    driving. She saw Mr. Cullifer in the other front seat for one or two minutes, including 30 to 60 seconds that elapsed before the ambulance began its journey.

    
    

24. The ambulance is "basically a regular van with . . high-top roof . . . [t]wo bucket seats in the front and a sliding door in the middle for the EMT's to go back and forth through." (T. 231) Because the sliding door is routinely locked open, an attendant seated on the edge of the passenger's seat can see and hear the patient while he is on the radio. Not uncommonly the attendant remained in the front seat for a minute or two as the ambulance set out, in order to communicate by radio with Doctors Memorial or Holmes County Ambulance Service.

    
    

25. The cord of the only radio that worked was long enough that the attendant could have stood somewhat closer to the patient, but it was unsafe to stand. Although the driver might have operated the radio, this was not customary. The evidence did not show that Mr. Cullifer's performance on February 7, 1986, departed from any standard of care or acceptable practice.

    
    

26. Mr. Cullifer's testimony that he only left patients "to make a radio transmission" (T. 237) keeping an eye on them even then, and that he did not "stay away from a patient over two or three minutes," id., has been credited. The record made of the 79-year old passenger's vital signs on February 7, 1986, does not prove otherwise. While this record reflects minimal variation in blood pressure during the 50-minute trip, the reported pulse rates vary more, and the reported rates of respiration show still more variation.

    
    

    Pate Deposition

    
    

27. No evidence supports the allegation that respondent Cullifer gave Sherri Pate marijuana. Objection to the use of Ms. Pate's deposition, which was taken in the criminal case, was sustained, although a proffer was allowed.

    
    

    CONCLUSIONS OF LAW

    
    

28. By statute, Section 401.411(1), Florida Statutes (1987), HRS "may deny, suspend, or revoke a license, certificate, or permit . . . for any of the following grounds:"

    
    

    1. The violation of any rule of the department or any provision of this chapter

       * * * Engaging in or attempting to

       engage in the possession, except in legitimate duties . . . of any controlled substance as set forth in Chapter 893.

       * * *

       (g) Unprofessional conduct, including, but not limited to, any departure from or failure to conform to the minimal prevailing standards of acceptable practice as an emergency medical technician . . .

       Section 401.411(1), Florida Statutes (1987).

       Marijuana is a "controlled substance as set forth in Chapter 893." Section 893.03(1)(c) 4., Florida Statutes (1987)

       
       

29. The administrative complaint also invokes Section 401.27(1) Florida Statutes (1987), which requires that an ambulance "when transporting a person who is sick . . shall be occupied by at least two persons, one of whom shall be a certified emergency medical technician, certified paramedic, or licensed physician . . . ." Id. Rule 10D-66.049(2)(d) , Florida Administrative Code, requires that "every ambulance in which a patient is being transported must have at least one certified EMT attending the patient."

    
    

30. License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d

    391 (Fla. 1974) Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, No. 69,561 (Fla.; July 16, 1987). See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling vs. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

31. Mr. Baker's animosity toward respondent, his access to the jeep, his stake in the search's outcome and his knowledge of its timing combine to make respondent's theory that Baker planted marijuana not wholly implausible. Perhaps Baker put a partial marijuana cigarette in each vehicle, locking Sprayberry's car after he had done so.

    
    

32. But the evidence was clear and convincing that a bag of marijuana was under the driver's seat of the jeep, and that respondent Cullifer was aware of it. Why else did Cullifer refuse Officer Adams' request for the keys and speed off at risk of his life? All in all, it was a peculiar time to take a five- minute spin. If Baker "planted" all of the marijuana, why would he put a partial cigarette and a bag in Cullifer's jeep, but only a partial cigarette in Sprayberry's car?

    
    

33. Officer Adams saw the bag. While not established with scientific exactitude, it is clear enough what was in the bag. Respondent's defense is that no bag existed, not that he had spinach under the seat. The seeds and leaves which apparently spilled from the bag may not have been tested separately from the partial marijuana cigarette, but the laboratory that analyzed the material reported cannabis traces.

    
    

34. Evidence that respondent sat down in a front seat to use the radio in the ambulance, keeping the patient in view while he did so, falls far short of clear and convincing proof that he violated Rule 10D-66.049(2)(d) , Florida Administrative Code, or departed from acceptable practice for emergency medical technicians.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That HRS suspend James E. Cullifer's certificate as an emergency medical technician for thirty (30) days.

DONE and ENTERED this 11th day of August, 1988, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

FILED with the Clerk of the Division of Administrative Hearings this 11th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3943

Petitioner's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12,

13, 14, 15 and 16 have been adopted, in substance, insofar as material.

Petitioner's proposed finding of fact No. 4 is not supported by the record cited.

Petitioner's proposed finding of fact No. 8 has been adopted, in substance, insofar as material, except for the characterization of the bag as "Ziplock."

Petitioner's proposed finding of fact No. 10 has been adopted, in substance, except as regards where the shots were aimed and where the bullets lodged.

The last sentence of petitioner's proposed finding of fact No. 17 has not been adopted, despite testimony to this effect, because using the radio could distract the driver.

Petitioner's proposed findings of fact Nos. 18 and 19 are rejected as unsupported by the weight of the evidence.

Petitioner's proposed findings of fact Nos. 18 and 19 . are rejected as unsupported by the weight of the evidence.

With respect to petitioner's proposed finding of fact No. 20, no evidence supported the allegation that Cullifer had given marijuana to Sherri Pate.

Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8, 10, 11, 12,

13, 14, 16, 17, 18, 20, 21 and 22 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 3, the evidence did not clearly and convincingly rule out the possibility that Baker planted the marijuana cigarettes.

Respondent's proposed finding of fact No. 7 is consistent with the evidence, but raises the question why he would be "frightened by the presence of police officers."

With respect to respondent's finding of fact No .9, nobody corroborated Baker's allegation of marijuana use or possession by respondent at any time other than February 13, 1986.

Respondent's proposed finding of fact No. 15 is immaterial.

With respect to respondent's proposed, finding of fact No. 19, the cord would not reach far enough to allow the attendant to sit in the patient compartment.

Respondent's proposed finding of fact No. 23 is rejected as unsupported by the evidence.

COPIES FURNISHED:

John R. Perry

2639 North Monroe Street Tallahassee, Florida 32303

Bonnie R. Roberts Post Office Box 667

Bonifay, Florida 32425

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO.: 87-3943

JAMES E. CULLIFER,

Respondent.

/ DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO.: 87-3944

WILEY R. SPAYBERRY,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services received the Recommended Orders in both of the above styled cases. The cases were heard in a consolidated hearing by the Honorable Robert T. Benton, II, a Hearing Officer with the Division of Administrative Hearings. The Recommended Orders in both the Cullifer and Sprayberry cases are attached. The complete record has been reviewed pursuant to Section 120.57(1)(b)10, Florida Statutes.

RULING ON THE DEPARTMENT'S EXCEPTIONS TO THE CULLIFER RECOMMENDED ORDER

1. The department excepts to finding of fact 6 on page 4 of the Recommended Order, which states that the authorities had invited television crews and other media representatives to be on hand to witness the apprehension of respondents, James E. Cullifer and Wiley R. Sprayberry. The evidence is clear that media representatives were present. It was reasonable for the Hearing Officer to infer that the authorities, not Cullifer and Sprayberry, invited the media. All the evidence suggests that Cullifer and Sprayberry were caught completely by surprise. The exception is denied.

   
   

2. The department excepts to the 30 day license suspension recommended for Cullifer as an insufficient penalty, I concur. The respondents served the public as Emergency Medical Technicians. This work includes the high speed transport and are of severely ill and injured persons. Cullifer's possession of an intoxicating drug on the job demonstrates a level of immaturity and irresponsibility requiring a severe sanction. There is also evidence that Cullifer, in the presence of Sprayberry, gave marijuana to a Sherri Pate at the ambulance shack two hours before the search warrant was executed and marijuana was found in both Cullifer and Sprayberry's motor vehicles by officers executing the warrant. See HRS exhibit 3, Pate deposition, pages 22 through 27. I conclude that the Pate deposition is admissible to corroborate that both Cullifer and Sprayberry were in the knowing possession of marijuana on their job on the night of February 13, 1986. Section 120.58(1)(a), Florida Statutes. A one year license suspension is appropriate under the circumstances.

RULING ON THE DEPARTMENT'S EXCEPTIONS TO THE SPRAYBERRY RECOMMENDED ORDER

1. The department excepts to finding of fact 6 on page 4 of the Recommended Order, which states that the authorities had invited television crews and other media representatives to be on hand to witness the apprehension of respondents, James E. Cullifer and Wiley R. Sprayberry. The exception is denied.

   
   

2. In the conclusions of law section of the Recommended Order, on page 12, the Hearing Officer alludes to a "theory" that Wilburn Baker placed a marijuana cigarette in Mr. Sprayberry's car. The defense of respondents was that someone must have "placed" marijuana in their motor vehicles without their knowledge.

They advanced their defense with evidence of a prior disagreement with the police officers who executed the search warrant and with a history of serious disputes with Wilburn Baker, a former supervisor. Mr. Baker also executed the affidavit in support of the search warrant. In the case of Cullifer, the Hearing Officer rejected this defense because of his flight from the scene and destruction of evidence. Yet, in the case of Sprayberry the Hearing Officer reached a different result because Sprayberry did not flee the scene. See Sprayberry Recommended Order findings 9 and 15. The discredited "planting" defense which was held to be insufficient to rebut the department's proof of possession as to Cullifer, is also insufficient to rebut the case against Sprayberry. There is no substantial evidence that marijuana was placed in their vehicles by the police or Wilburn Baker. De Groot vs. Sheffield, 95 So2d 912 (Fla. 1957). Remand to the Division of Administrative Hearings is not required.

I conclude that a one year license suspension is appropriate for Sprayberry for the same reasons given in support of the sanction imposed on Cullifer.

FINDINGS OF FACT

The Department hereby adopts the facts found by the Hearing Officer in both Recommended Orders, except where inconsistent with the rulings on the exceptions.

CONCLUSIONS OF LAW

The Department hereby adopts the conclusions of law found by the Hearing Officer except where inconsistent with the rulings on the exceptions.

Based on the foregoing, it is

ADJUDGED, that James E. Cullifer's certification as an Emergency Medical Technician be suspended for a period of one year. It is further adjudged that Wiley R. Sprayberry's certification as an Emergency Medical Technician be suspended for a period of one year. The suspensions ordered herein shall begin on the date this order is rendered.

DONE and ORDERED this 6th day of September, 1988, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Operations

COPIES FURNISHED:

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

John Perry, Esquire District 2 Legal Office

Asst. District Legal Counsel Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 200A Tallahassee, Florida 32203

Bonnie K. Roberts, Esquire Post Office Box 667 Bonifay, Florida 32425

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 9th day of September, 1988.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 87-003943

Orders for Case No: 87-003943