STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 79-416

)

KATHIE VERLENE MC DONALD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, am administrative hearing was conducted in the above matter before the undersigned Hearing Officer on May 2, 1979, in Cocoa Beach, Florida. The following appearances were entered: Julius Finegold, Jacksonville, Florida, for the Petitioner, Florida State Board of Nursing; and Jerrold A. Bross, Titusville, Florida, for the Respondent Kathie Verlene McDonald.

On or about February 1, 1979, the Florida State Board of Nursing issued an administrative complaint against the Respondent, Kathie Verlene McDonald. The Respondent requested an administrative hearing, and the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled to be conducted as set out above by notice dated March 25, 1979.

At the final hearing the Board called the following witnesses: James H. Bowman, the Personnel Director of Holmes Regional Medical Center in Brevard County, Florida; Judith E. Loebel, a chemist employed at the Holmes Regional Medical Center; Homer J. Roddenberry, a pharmacist employed at Holmes Regional Medical Center; Sally A. Taylor, the Director of Nursing at Holmes Regional Medical Center; Virginia Bixby, the Assistant Director of Nursing at Holmes Regional Medical Center; and Stephen D. Hand, a detective employed by the Police Department of the City of Indian Harbor Beach, Florida. The Respondent called the following witnesses: Stephen Landrigan, a Licensed Practical Nurse employed at Holmes Regional Medical Center; Greg Hartleb, a Registered Nurse employed at Holmes Regional Medical Center; and Bonnie Yearty, a Registered Nurse employed at Holmes Regional Medical Center. Board Exhibits 2 and 3, and Hearing Officer Exhibit 1 were received into evidence at the final hearing. Board Exhibit 1, a box of drugs, some of which are illicit drugs, was marked for identification, but was neither offered nor received. The Respondent has filed a Post-Hearing Legal Memorandum.

The final hearing in this case was consolidated with the final hearing in a case styled Florida State Board of Nursing versus Linda Sue Hilton, DOAH Case No. 79-351. The factual issues in the two cases are virtually the same, and the legal issues are identical.

FINDINGS OF FACT

1. The Respondent is licensed by the Florida State Board of Nursing as a Licensed Practical Nurse.

   
   

2. On or about January 2, 1979, the Respondent and Linda Sue Hilton, another Licensed Practical Nurse, resided together as roommates in an apartment in the town of Indian Harbor Beach, Florida. They were both at that time employed as Licensed Practical Nurses at the Holmes Regional Medical Center, which is also known as Brevard Hospital. On the evening of January 2, Respondent was the victim of a knife attack by an unknown assailant. Respondent was taken to the hospital accompanied by Linda Sue Hilton. The police were notified, and Stephen D. Hand, a detective employed by the City of Indian Harbor Beach Police Department, conducted the investigation. He came to the Respondent`s apartment on the night of January 2. Two other police officers were already at the scene, and the apartment door was open. He observed a towel full of blood on the couch in the living room and one on the floor in the bathroom of the apartment. He entered the bathroom and found syringes and various pills. There was a trail of blood leading into one bedroom. He followed the trail, and found additional pills in the bedroom, and several small plants which were later identified as cannabis sativa on the window sill. On his way out of that bedroom he observed through the open door of another bedroom several pills on a dresser. He seized all of the pills and the cannabis sativa plants. He also seized from the living room of the apartment a pipe, a smoking device called a "bong", and cigarette rolling papers. Residue of cannabis sativa was later identified in the Pipe.

   
   

3. At the time he conducted this investigation, Detective Hand was 22 years old and had been employed as a detective for only a few months. He is the only, and the first detective employed by the Indian Harbor Beach Police Department. At no time during the investigation did he obtain a search warrant, despite the fact that he observed drugs which he thought might be illicit, and despite the fact that he had ample opportunity to secure the premises and obtain a search warrant.

   
   

4. No criminal charges were ever brought against the Respondent, or against Linda Sue Hilton. The drugs which Detective Hand seized were turned over to the Holmes Regional Medical Center.

   
   

5. On January 12, 1979, the Director of Nursing at Holmes Regional Medical Center, Sally A. Taylor, confronted the Respondent and Hilton with the drugs that had been seized from their apartment. The Respondent told her that some of the pills had been obtained by prescription, and that some were not prescription drugs. The Respondent admitted that she had taken some Surfak, a non- prescription drug which is also a a controlled substance, from the hospital. Both the Respondent and Hilton admitted to taking some used syringes home from the hospital.

   
   

6. The Respondent and Hilton told Miss Taylor that the drugs were taken inadvertently . Taylor testified at the hearing that they did not tell her the drugs were taken inadvertently, and that she felt the Respondent and Hilton admitted to stealing the drugs. The testimony of the witness Taylor is in conflict with testimony that the witness had given earlier at a deposition. The deposition was received in evidence as Hearing Officer Exhibit 1. The testimony is also contrary to the testimony of Virginia Bixby, the Assistant Director of Nursing at Holmes Regional Medical Center, who was present during the interview. The testimony of the witness Taylor that the Respondent and Hilton admitted to

   taking the drugs home other than through a mistake is not creditable. There is no competent evidence in the record in this case from which it could be concluded that any drugs were taken from the hospital other than inadvertently.

   
   

7. The testimony in this matter does not reveal which of the seized drugs were taken from the bathroom, and which were seized from which of the two bedrooms. Neither does the testimony reveal which of the Respondents used which bedroom. Detective Hand testified that he recalled either McDonald or Hilton telling him at a later date that the bedroom where the cannabis sativa was found was Respondent's bedroom. His memory in this regard was, however, quite blurred, and is not worthy of reliance. There is no competent evidence in this matter from which it could be concluded that the Respondent was in possession of any particular combination of the pills and drugs seized from her apartment, or that Hilton was in possession of any of them. Indeed, it was not established whether other persons than the Respondent and Hilton occupied the apartment.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Section 120.57(1), 120.60, Florida Statutes.

   
   

9. The search of the Respondent's apartment, and the seizure of pills, drugs, cannabis sativa, and smoking implements, constituted an illegal search and seizure. As soon as the officer conducting the investigation of the premises concluded that there was evidence of criminal conduct, he should have secured the premises and sought a search warrant. He had ample opportunity to do that, there being no danger that the evidence would disappear or be removed.

   
   

10. The Petitioner contends that the rule by which illegally seized evidence is excluded from consideration in criminal cases does not apply to administrative proceedings. This contention is without merit. Proceedings in which an individual's professional license is at stake are "penal" in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Immunity statutes [Ciravalo and Feldman v. The Florida Bar, 361 So.2d

    121 (Fla. 1978); Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla. 1973); and Florida State Board of Architecture v. Seymour, 62 So.2d 1 (Fla. 1952)], and the right to remain silent [State ex rel. Vining v. Florida Real Estate Commission, supra] have been held by the Florida courts to be applicable in proceedings which are penal In nature. While no Florida cases have been found specifically holding that the exclusionary role relating to illegal searches and seizures applies in administrative hearings which are penal in nature in Florida, there is ample authority from other jurisdictions holding that the exclusionary rule does apply. See e.g. Knoll Associates v. Federal Trade Commission, 397 F.2d 530 (7 Cir. 1966); Walker v. United States, 125 F.2d

    395 (5 Cir. 1942); Malik v. New York State Liquor Authority, 294 N.Y. S.2d 948 (1968); Elder v. Board of Medical Examiners, 50 Cal. Rptr. 304, 315 (1966).

    
    

11. The pills, drugs, cannabis sativa, and smoking devices seized from the apartment of the Respondent should be suppressed, and should not be considered as evidence against the Respondent. Even if the evidence were not suppressed, it would not justify any specific finding as to possession of illicit drugs on the part of the Respondent, or as to theft of drugs on the part of the Respondent. The police making the search did not identify where specific drugs were found in the apartment, and the fact that the drugs could have been possessed by either the Respondent, her roommate Hilton, or some third person, is not sufficient to place her in possession of them.

12. The Respondent's admission that she inadvertently took some Surfak home from the hospital should not be considered as evidence against her. She was not warned at the time she made the statement that anything she said could be used against her, and to utilize the statement would be to place her in a position of testifying against herself contrary to the decision of the Florida Supreme Court in State ex rel. Vining v. Florida Real Estate Commission, supra.

    
    

13. Even if it were held that the exclusionary rule did not apply in administrative proceedings, and that the statement the Respondent made to the witness Taylor could be used as evidence against her, the evidence would support at most the finding that the Respondent inadvertently took some Surfak home with her from the Holmes Regional Medical Center.

    
    

14. The complaint against the Respondent, Kathie Verlene McDonald, should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby

RECOMMENDED:

That a final order be entered dismissing the complaint filed against the Respondent, Kathie Verlene McDonald.

RECOMMENDED this 1st day of June, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Jerrold A. Bross, Esquire MITCHELL, LITUS, BROSS, & HENDERSON

2323 S. Washington Avenue Suite 117

Titusville, Florida 32780

Julius Finegold, Esquire 1107 Blackstone Building

Jacksonville, Florida 32201

Geraldine B. Johnson Investigation & Licensing Coordinator

Florida State Board of Nursing

111 East Coastline Drive Jacksonville, Florida 32202

================================================================= AGENCY FINAL ORDER

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

BEFORE THE FLORIDA STATE BOARD OF NURSING

IN THE MATTER OF:

Kathie Verlene McDonald

201 Harbor City Parkway

Apt. F331 CASE NO. 79-416

Indian Harbor Beach, Florida 32939 As a Licensed Practical Nurse License Number 0468641

/

ORDER

This matter came on for final action by the Florida State Board of Nursing on the 26th day of June, 1979, at 111 Coastline Drive East, Suite 504, Jacksonville, Florida.

The Board, having reviewed the entire record, including all pleadings, exhibits admitted into evidence, the transcript of hearing proceedings, the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer, adopts the Findings of Fact of the Hearing Officer. Based upon the Findings of Fact, the Board concludes that the Respondent is guilty of unprofessional conduct in violation of Florida Statutes, Chapter 464.21(1)(b) and IT IS THEREFORE:

ORDERED AND ADJUDGED that the licensed practical nurse license number 0468641 of the Respondent, Kathie Verlene McDonald be placed on probation for a period of six (6) months, with the following terms and conditions:

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

   
   

2. That the Respondent attend and successfully complete a course in legal aspects of nursing and administration of medications, and upon satisfactory completion of such course to provide written verification to the Board of attendance and completion.

   
   

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

4. If employed as a nurse during the period of probation, that the Respondent have her employer to provide the Board with an evaluation of her nursing performance every three months during the period of this probation. Such evaluations must prove to be satisfactory to the Board.

   
   

5. The failure to comply with the terms of said probation shall be deemed a violation of this order.

DONE AND ORDERED this 2nd day of July, 1979, at Jacksonville, Florida.

FLORIDA STATE BOARD OF NURSING

By: Dorothy C. Stratton, R.N. President

BOARD SEAL

COPIES FURNISHED:

Kathie Verlene McDonald

201 Harbor City Parkway Apt. F331

Indian Harbor Beach, Florida 32937

Jerrold A. Bross, Esquire Mitchell, Litus, Bross & Henderson 2323 S. Washington Ave., Suite 117

Titusville; Florida 32780 Julius Finegold, Esquire

Docket for Case No: 79-000416

Orders for Case No: 79-000416