Judges: LINDA M. RIGOT
Agency: Department of Health
Latest Update: Feb. 14, 1984
Summary: Dismissal of complaint where board of nursing prosecuted Respondent whose criminal record had been sealed and failed to offer any evidence of a crime.
82-1750STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1750
)
VERNON F. APPLEBY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 29, 1982, in Coral Gables, Florida, and was concluded by the filing of the transcript of a deposition on May 3, 1983.
Petitioner Department of Professional Regulation, Board of Nursing was represented by W. Douglas Moody, Jr., Esquire, Tallahassee, Florida, and Respondent Vernon F. Appleby was represented by Alan E. Greenfield, Esquire, Miami, Florida.
Petitioner filed an Administrative Complaint seeking to suspend, revoke or take other disciplinary action against the Respondent as licensee and against his license to practice nursing under the laws of the State of Florida.
Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.
Petitioner presented the testimony of Eleanor Mastroianni and Nancy Caroline Cox. The Respondent testified on his own behalf and presented the testimony of Dr. Lawrence B. Gardner, Murray Zakarias, Eileen Kelly, Sally McCallum and Alan Ross. Additionally, Respondent's Exhibits numbered 1 through
3 and Respondent's late-filed Exhibit numbered 4 were admitted in evidence.
Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
Respondent is and has been a registered nurse having been issued license number 1006702.
On August 18, 1981, Respondent was arrested and charged with conspiracy to sell or deliver a controlled substance, to wit: cocaine. On August 19, 1981, Respondent was arraigned, at which time he entered a written plea of not guilty.
Also, on August 19, 1981, Respondent contacted the administrator of patient services at Jackson Memorial Hospital, where Respondent was employed as a nurse in the medical intensive care unit. He advised the administrator of the events of the prior day and likewise advised the head nurse of the medical intensive care unit of his problem. By that time, Respondent had achieved for himself an extraordinary reputation among his coworkers, his supervisors, and the management and medical personnel at Jackson Memorial Hospital as an extremely competent nurse who possessed unusual clinical knowledge and an unusual amount of sensibility to the needs of the individual patient and the patient's family. He was further considered to have the highest integrity and was held out as a role model of professionalism. However, the personnel policies of the Public Health Trust required that anyone charged with a criminal offense be automatically suspended. Accordingly, the administrator had no choice but to suspend Respondent from his employment effective August 19,198l.
Respondent had been arrested in conjunction with approximately 60 to 70 other persons pursuant to an extensive investigation referred to by the Dade County State Attorney's office as "Operation Tick-Tock." The arrests resulted from wire taps placed on the telephone of a Roberto Ortega. Ortega had placed a telephone call to Respondent's roommate, but Respondent had answered the telephone. Respondent and Ortega had a brief conversation in which the word "cocaine" was never used and no reference was made to cocaine, and the conversation in and of itself could not be characterized as being even a "drug- related" conversation. This sole conversation in which Respondent answered the telephone when Ortega called Respondent's roommate was Respondent's only involvement in Operation Tick-Tock.
Respondent hired an attorney to defend him and was required to pay a
$10,000 retainer. Thereafter, additional amounts of money were required for his defense. Respondent's attorney believed Respondent was innocent. His attorney further believed that he would be successful in presenting a motion to suppress the tapes obtained pursuant to the wire tap on Ortega's phone but that, even if he were unsuccessful in his motion to suppress, Respondent would still be found not guilty by any jury. He told Respondent that the legal fees involved in defending the criminal charge would cost Respondent $100,000.
Respondent could not afford such a legal fee. Respondent's attorney contacted the prosecutor handling the case and was advised that but for the fact that Respondent had been arrested as part of Operation Tick-Tock the State Attorney's office would have placed Respondent in a pretrial intervention program, which is a deferred prosecution program not resulting in any plea but rather resulting in dismissal of the charges after successful completion of the program. However, the State Attorney's office was not in a position to place any of the defendants in Operation Tick-Tock in the pretrial intervention program, since there had been extensive publicity regarding the investigation and arrests and the investigation had cost hundreds of thousands of dollars.
The State Attorney's office did agree with Respondent's attorney, however, that in view of Respondent's minimal involvement, if any, in any criminal conduct it would agree, in spite of the publicity engendered by the case, to accept a plea of nolo contendere in exchange for a short term of probation. Respondent's attorney and the prosecutor conferred with Dade County Circuit Court Judge Gerald Kogan regarding their negotiations and the facts leading to Respondent's arrest. Based upon the proffered statement of facts, the judge agreed that he would accept a plea of nolo contendere, that he would place the Respondent on probation, and that he would withhold adjudication, which means that there is no finding of guilt and there is no conviction.
Respondent's attorney discussed with him entry of the negotiated plea in view of Respondent's financial distress and Respondent's desire to return to work as soon as possible at Jackson Memorial Hospital. Respondent discussed the plea with the administration at Jackson Memorial and was advised that if he pled nolo contendere and if adjudication was withheld he would be returned to his prior position immediately with full back pay. Respondent's attorney sent a letter to Jackson Memorial confirming that information and further advising that Respondent desired to enter such a plea for the sake of convenience, since he could ill afford to litigate.
On November 18, 1981, Respondent pled nolo contendere to the charge against him, adjudication of guilt was withheld and Respondent was placed on two years' probation. On that same date, he was reinstated to his former position in the medical intensive care unit of Jackson Memorial Hospital and received retroactive pay.
In August 1982, Respondent's probation was modified to non-reporting status. On September 16, 1982, the wire taps used by the state on Ortega's telephone were found to be illegal, and all evidence obtained using the wire taps was suppressed by Dade County Circuit Court Judge Kogan.
On December 22, 1982, Judge Kogan sealed the Respondent's criminal file and expunged his record, the effect of which is that Respondent is entitled to state that he has never been arrested for any crime, which answer can also be given under oath as in the case of an employment application.
Both before and after August 18, 1981, Respondent has never had any disciplinary action taken against him and has never even had a complaint registered against him in the course of his employment. Both before and after August 18, 1981, there has never been a shortage reported in controlled substances in the medical intensive care unit at Jackson Memorial Hospital and Respondent has never even been charged with improper handling of any controlled substance.
Respondent has never used cocaine and has never engaged in the sale or possession thereof.
Respondent remains an exemplary employee, and nursing remains his chosen profession. His superiors consider that any suspension or revocation of Respondent's license would be a severe loss to the nursing profession itself. His ability to practice nursing has not been impaired.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties here to Section 120.57(1), Florida Statutes.
The Administrative Complaint filed herein charges Respondent with having violated Sections 464.018(1)(c) and (g), Florida Statutes (1981), which provide as follows:
The following acts shall be grounds for disciplinary action set forth in this section:
* * *
(c) Being convicted or found
guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing. A plea of nolo contendere shall be considered a conviction for purposes of this provision.
(g) Engaging or attempting to engage in the possession, sale, or
distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes.
As to the latter statute, no evidence was presented by Petitioner in support of the allegation that Respondent has violated Section 464.018(1)(g), Florida Statutes, and Petitioner agrees in its proposed recommended order that that portion of the Administrative Complaint against Respondent should be dismissed.
As to the other portion of the Administrative Complaint, which charges Respondent with having violated Section 464.018(1)(c) Florida Statutes, Respondent's file having been sealed and his record having been expunged, Petitioner is prohibited under the expunction statutes in effect in the State of Florida from finding that Respondent was arrested or entered any plea or was or was not adjudged in any way in relation to the allegations made in this Administrative Complaint. Since Respondent has never been arrested or charged with a crime, Petitioner cannot find him guilty thereof.
In the event that Petitioner should choose to ignore the legal effect of the expunction statutes and the order entered by Judge Kogan pursuant thereto, then Petitioner has failed to prove the allegations with which Respondent is charged in the Administrative Complaint filed herein. Respondent has neither been convicted nor been found guilty of a crime. There has been absolutely no connection alleged between the charges for which Respondent was arrested and any employment or license held by him. Although it is probable that in many situations an arrest which involves any controlled substance may directly relate to the practice of nursing, in the case sub judice no relationship was even alleged to Respondent's practice of his profession or to his ability to practice his profession. Answering a telephone bears no more relationship to the practice of nursing than it does to the practice of accounting or the practice of law. Not only has Petitioner failed to show that the crime for which this Respondent was arrested relates to his practice of nursing or impacts on his ability to practice nursing, but rather the evidence
in this cause mandates the opposite conclusion. The evidence is clear that the Respondent is not a drug user in either his private or professional life.
Further, Respondent has had no complaint registered against him before or after August 1981 regarding his handling of any controlled substance, and there has never been a shortage reported regarding the controlled substances which are available at all times in the medical intensive care unit where Respondent has practiced his profession for a long period of time with an unblemished record. Subsection (c) of Section 464.018(1), Florida Statutes, does not require that Petitioner take disciplinary action against a licensee upon a mere showing that the criminal charge involved a controlled substance, but rather that subsection requires that petitioner take disciplinary action against a licensee only if the crime relates to the practice of nursing or to the ability to practice nursing. In this case, no evidence was introduced upon which such a determination could be made. It must be remembered that after Respondent entered his plea resolving the pending charges against him, the tapes of the wire tap placed on Ortega's telephone were ruled illegal and therefore inadmissible. Had Respondent not entered a plea when he did, there would have been no evidence against him in any criminal prosecution, and there could have, accordingly, been no conviction against him for anything. In retrospect, Respondent's plea entered as a result of his financial situation turned out to be premature and makes the filing of this Administrative Complaint against him even more unfortunate.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty
of the charges contained within the Administrative Complaint filed against him, dismissing the Administrative Complaint filed herein, and sealing the record in this proceeding in order to conform with the Order entered by Judge Kogan that no record exists regarding Respondent's arrest.
DONE and RECOMMENDED this 27th day of September, 1983, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983.
COPIES FURNISHED:
W. Douglas Moody, Jr., Esquire Helen P. Keefe, Executive
119 North Monroe Street Director Tallahassee, Florida 32301 Board of Nursing
111 East Coastline Drive,
Alan E. Greenfield, Esquire Room 504
1000 Rivergate Plaza Jacksonville, Florida 32202
444 Brickell Avenue Miami, Florida 33131
Frederick Roche, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 82-001750
Orders for Case No: 82-001750
| Issue Date |
Document |
Summary |
|
Dec. 12, 1983 |
Agency Final Order
|
|
|
Sep. 27, 1983 |
Recommended Order
|
Dismissal of complaint where board of nursing prosecuted Respondent whose criminal record had been sealed and failed to offer any evidence of a crime.
|
