STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 78-092

) RICHARD LOWELL SMITH, L.P.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 10:00 a.m., on March 9, 1978, in Courtroom "C", 4th Floor, Pinellas County Judicial Building, 545 1st Avenue North, St. Petersburg, Florida.

Petitioner was represented by Julius Finegold, Esquire, 1005 Blackstone Building, Jacksonville, Florida, 32202. Respondent was represented by James R. Nieset, Esquire, Williams & Carnal, 6424 Central Avenue, St. Petersburg, Florida, 33707.

Petitioner, Florida Board of Nursing (hereafter the Board) seeks to revoke the license of Respondent (hereafter Smith) as a licensed practical nurse because Smith was convicted of an offense in another jurisdiction which, if committed in the State would be deemed a felony, and because it is alleged Smith was guilty of fraud or deceit in the procurement of his license.

FINDINGS OF FACT

1. On March 7, 1977, Smith completed and forwarded to the Board his application for licensure as a licensed practical nurse pursuant to the provisions of Section 464.21(1), Florida Statutes. Question eleven of that application asks whether the applicant has ever been arrested and convicted for an offense other than a minor traffic violation. Smith answered the question yes and in the space provided for an answer in the application detailed his arrest and conviction for driving while indoxicated in the State of Florida. No other notation is made on the application form regarding any other arrests and convictions.

   
   

2. However, Smith did in fact have another arrest and conviction occurring in January, 1964, in the State of Michigan. At that time, Smith was found guilty of the crime of taking indecent and improper liberties with a female child under the age of sixteen, that being a violation of Section 750.336, Michigan Compiled Laws Annotated. The trial court found that Smith took his eleven year old niece to bed with him and "placed his penis between the girl's thighs and started to masturbate over her."

   
   

3. Had Smith committed the same act in Florida for which he was convicted in Michigan in 1964, he could have been charged under Section 800.04, Florida

Statutes, proscribing lewd, lascivious or indecent assault or acts upon or in the presence of a child under the age of fourteen.

1. Smith argued that his conviction of a felony in Michigan should not automatically be equated to the commission of a felony offense in Florida because the acts which he committed in Michigan may not have been viewed in Florida at that time as "lewd, lascivious or indecent" as defined by Florida case law. Such definition is found in Boles v. State, 27 So.2d 293 (Fla. 1946), wherein the Court stated that the words lewd, lascivious and indecent are synonyms and connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator. And the Court in Buchanon v. State, 111 So.2d 51 (Fla. 1959), defined these terms as meaning an unlawful indulgence in lust, eager for sexual indulgence.

   
   

2. Smith argues that in the area of sexual attitudes and mores universal agreement is impossible and that local community standards must be applied to determine the nature and quality of any given act. This argument is specifically rejected. While such an argument may have application to the expression of ideas, it is inapposite to Smith's conduct in Michigan which had the potential of causing severe emotional damage to another person. Smith's conduct was without doubt lewd, lascivious and indecent.

   
   

3. In defense of the charge of fraud or deceit in the procuring of his license, Smith introduced into evidence what purports to be a rough draft of a supplement to his application in which the details of his Michigan conviction are set forth. Smith and members of his family testified to events which, if true, would establish that Smith had intended to include the supplement to his application and that it had been inadvertently lost. While it is not concluded as a matter of fact that Smith actually intended to file a supplement to his application, the evidence introduced by Smith is sufficient to raise doubt and to cause the Hearing Officer to conclude that evidence of Smith's fraudulent intent, when viewed in light of the evidence as a whole, is insufficient to establish fraud or deceit.

   
   

   CONCLUSIONS OF LAW

   
   

4. The sole question that remains to be resolved is whether Smith's license should be revoked based upon his Michigan conviction. A license may not be properly revoked when the revocation is based solely on the commission of a prior offense. Rather, there must be established a relationship between the kind of offense committed and the good moral character required of the licensee. 1973 Op. Att'y Gen. Fla. 073-355.

   
   

5. Clearly, improper sexual conduct is inconsistent with the conduct expected of a licensed practical nurse who works with infirm persons in a most intimate and sensitive context. It should be noted, however, that Smith's conviction occurred some fifteen years ago and that in the intervening time Smith has had no problems. It would be patently unfair to deny the possibility of rehabilitation in a situation such as the present one and revoke a license without giving the licensee an opportunity to establish whether rehabilitation has occurred. Accordingly, it is

RECOMMENDED that Smith be given an opportunity to establish whether his present psychological and moral condition is consistent with the requirements of licensed practical nursing, and that if Smith fails to make an affirmative showing, that his license as a licensed practical nurse be revoked.

DONE and ENTERED this 14th day of June, 1978, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1005 Blackstone Building

Jacksonville, Florida 32202

James R. Nieset, Esquire Williams & Carnal

6424 Central Avenue

St. Petersburg, Florida 33707

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AGENCY FINAL ORDER

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

BEFORE THE FLORIDA STATE BOARD OF NURSING

IN THE MATTER OF:

Richard Lowell Smith

6342 56th Avenue North CASE NO. 78-092 St. Petersburg, Florida 33709

As a Licensed Practical Nurse License Number 44410-1

/

FINAL ORDER

This matter came on for deliberation and final action by the Florida State Board of Nursing on the 26th day of June, 1978, in the Board of Construction industry Conference Room, 6501 Arlington Expressway, Building B, Jacksonville, Florida 32211.

The Board, having reviewed the entire record, including all pleadings, exhibits admitted into evidence, the transcript of hearing proceedings, the Memorandum of Law, the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer, adopts the Findings of Fact and Conclusions of Law of the Hearing Officer and IT IS THEREFORE:

ORDERED AND ADJUDGED that the license practical nurse license number 44410-

1 of the Respondent, Richard Lowell Smith, be suspended for a period of two (2) years. However, it is ordered that said suspension be and the same is hereby stayed and the licensee be placed on probation for a period of two years with the following terms and conditions:

1. That the Respondent refrain from violation of any law, Federal, State or Local.

   
   

2. That the Respondent inform, in writing, the Florida State Board of Nursing immediately of any change of address or change of employment.

   
   

3. That the Respondent request his employer to provide the Board with an evaluation of his nursing performance every three (3) months during the period of this probation.

The failure to comply with the conditions of this probation shall be deemed a violation.

DONE AND ORDERED this 10th day of July, 1978, at Jacksonville, Florida.

FLORIDA STATE BOARD OF NURSING

BY:

Dorothy C. Stratton, R.N., President

BOARD SEAL

ccs: Richard Lowell Smith 6342 56th Avenue North

St. Petersburg, Florida 33709

James R. Nieset, Esquire Williams & Carnal

6424 Central Avenue

St. Petersburg, Florida 33707

Docket for Case No: 78-000092

Orders for Case No: 78-000092