STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2408

)

JILL D. MITCHELL, )

)

)

Respondent. )

)

RECOMMENDED ORDER

On April 1, 1985, a formal hearing was conducted pursuant to Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer. The location of the hearing was Melbourne, Florida. This recommended order is being entered following the receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on May 13, 1985.

Consideration has also been given to the proposed recommended order of the Petitioner as filled with the Division of Administrative Hearings on June 3, 1985. To the extent that this proposal is consistent with the recommended order, it has been utilized. Otherwise, it is rejected as being irrelevant, immaterial, subordinate, or cumulative of facts found in the recommended order. Portions of the proposed facts are also rejected in view of a determination that those facts were not credible.

APPEARANCES

For Petitioner: Gerry L. Clark, Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite 911 Orlando, Florida 32801

For Respondent: Jack Vaughn, Esquire

Preston Silvernail, Esquire Post Office Box 370 Melbourne, Florida 32902

ISSUES

The issues in this case are those promoted through an Administrative Complaint brought by the Petitioner against the Respondent charging the Respondent with possession of controlled substances and the sale and distribution of those substances. This alleged conduct on the part of the Respondent is said to have violated Section 401.411(2), Florida Statutes.

FINDINGS OF FACT

1. Jill D. Mitchell, Respondent, at all times relevant to this case, was the holder of an Emergency Medical Technician certificate and Paramedic certificate. This certification or licensure allows the Respondent to engage in activities related to those licenses within Florida.

   
   

2. Briefly stated, an Emergency Medical Technician has the authority to perform basic life support functions. As an example, to stop bleeding, to apply splints, and to perform other non-invasive techniques related to patient treatment. By contrast, the Paramedic is empowered to do invasive techniques to include injecting drugs, performing I.V. therapy, opening oral airways, monitoring the patient's heartbeat and as need be, defibrillation.

   
   

3. Prior to the present actions, Respondent has never been charged with any administrative violations pertaining to her licensure in the aforementioned fields. The Administrative Complaint which underlies this action dates from June 14, 1984.

   
   

4. In particular, the complaint against the Respondent arose as an adjunct to a police investigation being conducted by the Brevard County, Florida Sheriff's Office and detectives from Baltimore, Maryland.

   
   

5. On November 2, 1983, Officer Walter Kight, Jr., and another officer from the Brevard County Sheriff's Office, accompanied two detectives from Baltimore, Maryland to Grant, Florida, to question individuals on the subject of a homicide investigation in Maryland. When the officers arrived at the residence where they were to conduct the investigation, they discovered 400 pounds of suspected marijuana. As a consequence, a number of arrests were made related to this substance believed to be marijuana.

   
   

6. After securing the residence, the officers began to receive calls concerning narcotics. There were fifteen to twenty of those calls and several callers were identified as being women. One of the persons who called said that her name was Jill.

   
   

7. According to officer Kight, this person whose name was Jill asked if David was there. In response to the inquiry Kight states that he told the woman that David was not there, but David would be back later. Kight said the woman then asked if the "stuff" was there. Kight indicates that he said yes and that "he left it here for you". The officer recounts that the woman indicated that she gave David valium pills and placidyl, for his headaches, in exchange for a "hit". Again Kight indicates that he told the woman that "its here", that he left it "for us". The woman is then said to have quoted a price, "... that it was normally twenty-four dollars and something and she'd be right over driving a black Corvette to pick it up."

   
   

8. Respondent arrived at the residence in question shortly thereafter, driving a black and silver Corvette. Kight met her out at the car. Kight reports that she asked if he were the person whom she had talked to in the telephone conversation. Kight said that he indicated that he was and then she asked that he get in the car. Kight said that she then indicated they would go for a ride and he told her that this would not be possible because there was "too much stuff" in the residence and that it could not be left. Kight states that Respondent then said that she needed a "fix" bad, because she had had a bad day and could they go into the bathroom. Per Kight's testimony they then went into the residence and into the bathroom within that residence. Once in the

   bathroom, per Kight's testimony, two bottles were taken from her purse which were identified as being valium and placidyl. Those bottles were placed on the counter. Kight states that there were several items in her purse such as a syringe, a spoon, things that would normally be used for narcotics. Kight says that the Respondent then asked him if he had "the stuff", and further stated that she needed a "hit". He says that he answered in the affirmative and that she gave him sixteen dollars in cash and stated that there were five other dollars in the car. Kight indicates that he said they would get that money later. Kight indicates that Respondent was then arrested for possession of a controlled substance and intent to sell a controlled substance. This arrest pertained to the valium and placidyl. Valium and placidyl are controlled substances.

   
   

9. Kight testified that alleged reference to shooting-up on the part of the Respondent meant use of "heroin, coke or whatever is available." Kight says that the money mentioned before was given to him and that she had washed up in the sink and rolled up her sleeves. Kight indicates in his testimony, that the two bottles of pills, namely the bottle of valium and placidyl, were not handed to him but left on the counter. In that connection, Kight testifies that the Respondent indicated that the pills were ones which Dave needed for his headaches. Kight indicates that no request was made by the Respondent for payment for the valium and placidyl. Instead, at that moment, according to Kight, Respondent said, "This is what I have and I've got twenty-four dollars." Kight denies asking the Respondent if he could purchase the valium and placidyl from the Respondent. Later in his testimony Kight indicates that the transaction was one involving a trade where she would give him two bottles of pills and some money for some heroin. This was, according to Kight, a surmise on his part that heroin was being exchanged for, in that he felt that "stuff" referred to coke or heroin or whatever she might want. He acknowledges that the reference to "stuff", as he understood it, might have meant any substance. In a further point in his testimony, Kight indicates that Rospondent indicated that she normally deals with David and that David has bad migraine headaches and that she would give him valium pills for that and then he would fix her up with some drugs. Finally, in the course of the testimony at hearing, Kight indicated that the arrest for possession with intent to sell a controlled substance pertained to the valium and placidyl, and that the sale was a sale to the officer. On the other hand, that testimony is followed shortly thereafter by his testimony to the effect that no money was requested from the officer and that she was trading her drugs for heroin.

   
   

10. Bits of heroin and cocaine were found in the residence. However, charges related to persons involved in this episode, other than the Respondent, were for possession of marijuana, from the point of view of Officer Kight's understanding of the circumstance.

    
    

11. Respondent in her testimony indicated that she telephoned the premises where Officer Kight was involved in the investigation. In actuality, per the Respondent, two calls were made and they were in response to a telephone call that someone had made to her from the residence. On the first call she was told that the individual she was looking for was not there and on the second call she was told to come down to the premises. In that second call she talked to someone who identified himself as being Troy, the name that Officer Kight was using in his undercover capacity. Respondent was familiar with a person named Troy who frequents that residence. Respondent had been to the residence before, per her testimony.

12. The person she was looking for at the residence was an individual identified as Dave or David. Dave or David is the son of the woman who owns the house where the suspected marijuana had been found. Respondent said that she had borrowed twenty dollars from David and that in addition David had property of hers, namely a pink opal ring. It was her intention to go to the residence and return the money she had borrowed from David and retrieve her ring.

    
    

13. When she arrived at the scene she was approached by Officer Kight, who identified himself as Troy. According to her testimony, Kight did not get into her car. She was then invited into the house where she entered the bathroom. While in the bathroom, Kight, per her testimony, was standing in the doorway while she was using makeup and combing her hair. As she recalls, she removed her wallet and two legal prescriptions which had been filled for valium and placidyl. The prescriptions were in the name of the Respondent. Those are the items which the Respondent is accused of possessing and selling through the present Administrative Complaint.

    
    

14. Respondent testified that the two prescriptions were still in the bag that they were placed in at the pharmacy. She further relates that those prescriptions had been filled between the first and second phone calls which she made to the residence on the night in question. According to Respondent, she placed those two prescriptions on a counter in the bathroom. Respondent states that Officer Kight then looked at those prescriptions and asked her if she wanted to get rid of them and she replied that they were hers. He asked her specifically, per her testimony, what she wanted for the valium. He then put the drugs down and asked her how much money she had, according to Respondent. Respondent states that she took her wallet out and started to count it and in turn told the officer to count it. She says that she figured he was a friend of Dave's and if he wanted to borrow a couple dollars that it would be okay. When the officer counted out seventeen dollars, she says she figured that she had left some money in the car, because she had gone to the bank, and remembered that she had more than seventeen dollars. The officer, as testified to by the Respondent, then took the two pill bottles and started to walk out of the bathroom and as she turned around to ask him where he was going with those prescriptions, she was placed under arrest. Respondent denies having any narcotics paraphernalia in her purse, such as a spoon or syringe. Likewise, she denies offering to trade or sell drugs, namely the valium and placidyl.

    
    

15. Having considered the demeanor of the witness Night and the Respondent, and in view of the testimony given by those witnesses, the testimony of Officer Kight is not accepted. This refers to the testimony reported in this recommended order. The testimony of the Respondent is accepted, as reported in these findings of fact. Other findings of fact made in the recommended order, not attributed directly to the witnesses Kight and Mitchell are not affected by this choice.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

17. By Administrative Complaint the Respondent is accused of possession of controlled substances and the sale and distribution of controlled substances. Though not specified in the Administrative Complaint, by remarks of counsel in the course of the final hearing, those controlled substances relate to valium and placidyl. Having considered the facts of this case, as reported, Respondent

is not found to have illegally possessed the valium and placidyl, nor has she been shown to have sold and/or distributed those controlled substances. She had a valid prescription for those controlled substances and did not sell or distribute them. Therefore, Respondent has not violated Section 401.411(1)(d), Florida Statutes and is not subject to the disciplinary action contemplated by Section 401.411(2), Florida Statutes.

Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which dismisses the Administrative Complaint against the Respondent, Jill D. Mitchell.

DONE and ENTERED of this 13th day of June, 1985, at Tallahassee, Florida.

CHARLES C. ADAMS

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 13th day of June, 1980.

COPIES FURNISHED:

Gerry L. Clark, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services Suite 911

400 West Robinson Street Orlando, Florida 32801

Jack Vaughn, Esquire Preston Silvernail, Esquire Post Office Box 370 Melbourne, Florida 32902

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301

Docket for Case No: 84-002408

Orders for Case No: 84-002408