Alabama Bd. of Nursing v. Herrick

• Decision Date: 11 July 1984
• Citation: 454 So.2d 1041
• Parties: ALABAMA BOARD OF NURSING v. Pearl Lee Lucas HERRICK. Civ. 4235.
• Court: Alabama Court of Civil Appeals

Page 1041

454 So.2d 1041

ALABAMA BOARD OF NURSING v. Pearl Lee Lucas HERRICK.

Civ. 4235.

Court of Civil Appeals of Alabama.

July 11, 1984.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram and Rivard Melson, Asst. Attys. Gen., for appellant.

Julian L. McPhillips, Jr. of McPhillips & DeBardelaben, Montgomery, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This case concerns the suspension or revocation of the license of a licensed practical nurse (LPN).

The proceedings were instituted in the Alabama Board of Nursing (board) before the effective date of the Alabama Administrative Procedure Act, § 41-22-27(e), Code 1975.

The evidence was heard by a hearing officer whose findings of fact and conclusions of law, except for his recommendation, were adopted verbatim by the board. The hearing officer's recommendation was that Mrs. Herrick's license as an LPN be suspended for a period of ninety days. The board ordered that her license be revoked. On appeal, the circuit court adopted the findings of fact of the hearing officer and reversed the order of the board, thereby substituting the hearing officer's recommendation of a ninety-day suspension of her license. The board appealed.

In Southern Haulers, Inc. v. Alabama Public Service Commission, 331 So.2d 660 (Ala.1976), a hearing examiner of the agency heard all of the evidence which was presented upon an application for the issuance of a certificate of public convenience and necessity. The examiner's report contained a summary of facts which was adopted by the commission. While the examiner recommended that the application be denied, the commission declined to follow that recommendation and the commission granted a certificate which was effective in six of the eighteen counties sought to be served. In affirming the determination of the commission, the supreme court stated as follows:

"Upon review, a presumption of correctness is ordinarily to be accorded to an order of the APSC. Alabama Power Co. v. APSC, 278 Ala. 597, 179 So.2d 725 (1965) (construing Tit. 48, § 82, Code of Alabama of 1940). However, where the evidence has been heard ore tenus by a hearing examiner and not by the commission members themselves, the presumption of correctness normally accorded to the commission's order will instead be accorded to the examiner's findings of fact. APSC v. Perkins, 275 Ala. 1, 151 So.2d 627 (1962).

"....

"However, here the APSC adopted the summary of facts set out in the hearing examiner's report. That summary of facts carries with it the presumption of correctness which is properly to be accorded to the conclusions of one who heard the evidence ore tenus.

"....

"Admittedly, there is evidence supporting the examiner's legal conclusions leading to his recommendation that the certificate be denied. However, although the ore tenus rule mandates that a presumption of correctness be accorded a hearing examiner's findings of fact when he alone has heard the evidence, the ore tenus rule does not also mandate a presumption of correctness in favor of the examiner's conclusions of law. Furthermore, we are not aware of any instance in which this Court has accorded such a presumption to the examiner's legal conclusions."

331 So.2d at 663 and 664. While that case involved another administrative agency where the examiner's powers are generally defined by statute, we deem that language to be peculiarly applicable also to the present appeal regarding the effect of the hearing officer's recommendation. Accordingly, the recommendation of the hearing officer as to the suspension of Mrs. Herrick's license for ninety days is not favored with a presumption of correctness.

We find that the order of the board was reasonable and it was not arbitrary. It was reasonably supported by the testimony contained in the lengthy record which we have read. It is also reasonably supported by those facts detailed in the hearing officer's report which are also included in the order of the board. There was substantial credible evidence that Mrs. Herrick was intoxicated on two occasions while on duty as an LPN in the emergency room of the Air Force hospital where she was employed.

The board, not the...