STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1633

)

DELLA ELAINE LAMBERTON, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Tampa, Florida, on November 2, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1007 Blackstone Building

Jacksonville, Florida 32202 For Respondent: Appeared in own behalf

ISSUE PRESENTED

Whether Respondent Della Elaine Lamberton should be granted re-registration of terminated license No. 34741-1 as indicated in the Administrative Complaint dated 7-18-78, pursuant to Section 464.21(1)(d), Florida Statutes.

Respondent Della Elaine Lamberton appeared at the hearing without counsel or other representative. The Hearing Officer explained her rights in an administrative hearing and she acknowledged that she understood the same. The Respondent also stated that she is now married and that her married name is Farris.

Petitioner moved to amend paragraph 3 of the Administrative Complaint to reflect that Respondent was arrested in January, 1976 rather than 1975 as alleged therein. There being no objection, the request was granted.

FINDINGS OF FACT

1. Respondent was licensed as a Licensed Practical Nurse with the Florida State Board of Nursing in 1974 and such license was automatically terminated on April 1, 1977, for non-payment of license renewal fee. On August 11, 1977, Respondent filed an application for re-registration of her terminated license with Petitioner. Petitioner reviewed the application and denied the same by a letter to Respondent dated October 28, 1977, under the authority of Section 464.21(d), Florida Statutes. The specific basis for denial was that Respondent had a prior arrest for possession of marijuana. (Testimony of Johnson, Exhibit 1-2)

2. On February 4, 1975, Hillsborough County Deputy Sheriff Gene L. Stokes and Detective William Strickland, who were operating as undercover narcotic detectives, entered Respondent's residence at 3213 Delray Drive, Tampa, Florida. They had made prearrangements with Joseph H. Farris, who also resided at that residence, to purchase approximately two pounds of marijuana for $175.00 per pound. Farris met the officers at the door and escorted them into the kitchen where Respondent, Albert Yourn, and Thomas Spear, were seated around the kitchen table. A neighbor, Nancy Anderson, entered the residence at the same time as did Stokes and Strickland. Farris proceeded to cut a quantity of material from a compressed block of a substance that appeared to he marijuana. He placed the severed portion in a ziplock "haggle" and weighed it on a scale located on the kitchen table. At that point, the officers arrested all persons on the premises for possession and delivery of marijuana. A search of the residence pursuant to a search warrant revealed the presence of other quantities of marijuana and implements for its use in a kitchen desk drawer and in a cabinet above the kitchen stove. Two bags of marijuana were also found in Spear's possession as a result of a search of his person. The amount of marijuana remaining on the kitchen table was approximately 920 grams and a "haggle" containing approximately 16 pre-wrapped ounces of marijuana was also on the kitchen table. The substance which had been sold to Stokes was delivered to the Florida State Crime Laboratory in Tampa and, after analysis by Richard H. Estes, a forensic chemist employed by the Florida Department of Law Enforcement, was determined to be cannabis sativa, also known as marijuana. Marijuana is a Schedule I controlled drug under Chapter 893, Florida Statutes. (Testimony of Stokes, Estes)

   
   

3. On February 13, 1975, an Information was filed in the Circuit Court of Hillsborough County, Florida against Respondent for possession of more than five grams of marijuana on February 4, 1975, in violation of subsection 893.13(1)(e) Florida Statutes. On May 25, 1976, Respondent entered a plea of guilty to the charge and Order Withholding Adjudication of Guilt was entered by the Court with probation for a period of two years. (Exhibits 3-4)

   
   

4. Respondent testified at the hearing that she had no knowledge that marijuana was being sold at her residence on February 5, 1975, and that she had not entered the house until subsequent to the entrance by the detectives. She admitted that her residence had been a gathering place for individuals in the neighborhood, including some of whom she did not approve and also persons unknown to her. She testified that although she pleaded guilty to the charge of possession of marijuana, she was under the impression that she was simply acknowledging that marijuana had been present at her residence. She also testified that when she had discovered what was taking place at her home, she "started a little hassle " with Farris. Her present husband, Joseph Farris, testified and corroborated her version of the incident, including her claim that she was unaware of the presence of marijuana on the premises. In addition, her cousin, Albert Yourn, who was present at the time of the arrest, testified that Respondent was not in the house at the time the drug transaction was taking place, but that she arrived prior to the arrest. (Testimony of Respondent, J. Farris, Yourn)

   
   

5. Petitioner's records reflect that Respondent meets all other qualifications for licensure. They do not show the presence of any other derogatory information prior to or subsequent to Respondent's arrest. (Testimony of Johnson)

   CONCLUSIONS OF LAW

   
   

6. Petitioner predicates its denial of Respondent's request for license re-registration on subsection 464.21(1)(c) which provides pertinently as follows:

   
   

   464.21 disciplinary proceedings

   (1) GROUNDS FOR DISCIPLINE -- The Board shall have the authority to deny a license to any applicant . . . who has been found guilty by the Board of:

   * * *

   (d) Engaging in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes.

   
   

7. Section 893.03, Florida Statutes, includes cannabis as a Schedule I controlled substance under the Florida Comprehensive Drug Abuse Prevention and Control Act. Subsection 893.13(1)(e) makes it unlawful for any person to be in actual or constructive possession of a controlled substance unless it was lawfully obtained, and further provides that anyone violating the statutory provision is guilty of a felony of the third degree.

   
   

8. In order to constitute grounds for license denial, Section 464.21(1) requires that an applicant must be "found guilty" by Petitioner of "engaging" in the possession of a Chapter 893 controlled substance. The Respondent's plea of guilty to the 1975 offense offense of possession of marijuana in violation of subsection 893.13(1)(e), F.S., cannot serve to establish her guilt of such an offense in an administrative proceeding, but constitutes an admission against interest that may properly be considered together with other evidence.

   
   

9. The elements of the stated offense are the individual's knowledge of the presence of the controlled substance and the ability to maintain control over it or reduce it to possession. Dixon v State, 343 So 2d 1345 (Fla. 2nd DCA 1977) The evidence establishes that Respondent was at her residence which she jointly occupied with Joseph Farris at the time the marijuana "sale" to law enforcement officers took place. The presence of a large quantity of marijuana on the kitchen table at that time leads inexorably to the conclusion that Respondent had constructive, if not actual, possession of the controlled substance. The presence of a smoking implement and other quantities of marijuana in various places on the premises, coupled with Respondent's plea of guilty to the offense, is sufficient to establish Respondent's knowledge of its presence and ability to maintain control or otherwise reduce it to her own possession. See Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976) Accordingly, it is concluded that Petitioner has established Respondent's violation of the specified statutory provision.

   
   

10. Although denial of Respondent's application for re-registration is justified under the circumstances, it is considered that the length of time that has elapsed since her commission of the offense would have warranted favorable consideration if proof of rehabilitation had been shown by the Respondent. Such was not the case. It is considered that if a subsequent application is filed, accompanied by proof of Respondent's good reputation in the community and in her profession, it should receive favorable consideration.

RECOMMENDATION

1. That the application of Respondent Della Elaine Lamberton Farris for re-registration as a Licensed Practical Nurse be denied under the authority of Section 464.21(1)(d) Florida Statutes.

   
   

2. That favorable consideration he given to any subsequent application by Respondent for re-registration, provided that such application is accompanied by proof of present good character.

DONE and ENTERED this 27th day of December, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1007 Blackstone Building

Jacksonville, Florida 32202

Geraldine Johnson, R.N. Investigation and Licensing State Board of Nursing

6501 Arlington Expressway Bldg B Jacksonville, Florida 32211

Della Elaine Lamberton Farris 3202 Clifford Sample Drive Tampa, Florida 33619

Docket for Case No: 78-001633

Orders for Case No: 78-001633