STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3944

)

WILEY R. SPRAYBERRY, )

)

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 Wiley R. Sprayberry's certification as an emergency medical technician should be suspended for six months 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:

On February 13, 1986, Respondent [Sprayberry] 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. Sprayberry "violated section 401.27(1), F.S., and section 10D-66.049(2)d, F.A.C., in that on February 7, 1986, . . . [he] transported 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 James E. Cullifer's certification as an emergency medical technician should be revoked, because he violated the same statutes and rules, but the administrative complaint alleges that, while Mr. Sprayberry drove the ambulance on February 7, 1986, Mr. Cullifer was primarily responsible for attending the patient; and alleges that Mr. Cullifer "g[a]ve a local citizen two 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. 87-3943 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 Sprayberry's certification as an emergency medical technician or take other disciplinary action, for the reasons alleged in the administrative complaint?

FINDINGS OF FACT

1. The parties are in apparent agreement that respondent Wiley R. Sprayberry has held emergency medical technician certification No. JT 004523, at all pertinent times.

   
   

   Warranted Search

   
   

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). 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)

   
   

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

   
   

5. 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.

6. 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 In Winter

   
   

7. 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.

   
   

8. 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.

   
   

9. 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.

   
   

10. 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.

    
    

11. 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.

    
    

12. 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.

    
    

    Bag Plus Partial Cigarette

    
    

13. 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.

    
    

14. 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)

    Partial Cigarette Only

    
    

15. 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.

    
    

16. 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 had 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 partial marijuana cigarette or "roach."

    
    

    No Other Link To Sprayberry

    
    

17. 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.

    
    

18. 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)

    
    

19. 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 which did not pertain to Mr. Sprayberry, in any event; and from leafy matter and paraphernalia Mr. Baker said he found at the ambulance shack.

    
    

20. 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)

    
    

21. 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

    
    

22. 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.

    
    

23. 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.

    
    

24. A critical electrical cord attached to 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. Sprayberry's performance on February 7, 1986, departed from any standard of care or acceptable practice.

    
    

25. 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.

    
    

    CONCLUSIONS OF LAW

    
    

26. 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

       
       

       (d) 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).

       
       

27. 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."

    
    

28. 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.

    
    

29. 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.

    
    

30. Of course, the evidence does not establish this hypothesis, but neither does it clearly and convincingly disprove it. Mr. Sprayberry's demeanor during the search and his contemporaneous assertion that he had left his car unlocked, which has been credited, are compatible with the theory that Mr. Baker placed a partial marijuana cigarette in Mr. Sprayberry's car. His behavior during the search tends to prove that he was not aware that marijuana was in his car.

    
    

31. Evidence that respondent permitted his colleague to sit 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 dismiss the administrative complaint filed against Wiley R. Sprayberry.

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 Administrative Hearings this 11th day of August, 1988.

APPENDIX

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.

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 K. ROBERTS

P. O. BOX 667

BONIFAY, FLORIDA 32425

GREGORY L. COLER, SECRETARY DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD

TALLAHASSEE, FLORIDA 32399-0700

Docket for Case No: 87-003944

Orders for Case No: 87-003944