Kubiak v. Mo. State Bd. of Nursing

• Docket Number: WD 85529
• Decision Date: 09 May 2023
• Citation: 667 S.W.3d 230
• Parties: David KUBIAK, Respondent, v. MISSOURI STATE BOARD OF NURSING, Appellant.
• Court: Missouri Court of Appeals

667 S.W.3d 230

David KUBIAK, Respondent,

v.MISSOURI STATE BOARD OF NURSING, Appellant.

WD 85529

Missouri Court of Appeals, Western District.

OPINION FILED: May 9, 2023

David Frederick Barrett, Jefferson City, MO, for respondent.

Kevin Robert Hall, Jefferson City, MO, for appellant.

Before Division Four: Gary D. Witt, Chief Judge, Presiding, Mark D. Pfeiffer, Judge, Thomas N. Chapman, Judge

Gary D. Witt, Judge

David Kubiak ("Kubiak") is a registered nurse and holds a nursing license from the Missouri Board of Nursing ("Board"). On October 19, 2021, the Board's attorney filed a complaint entitled "Request for Disciplinary Hearing," requesting the Board to hold a hearing pursuant to section 335.066.16(1) to determine whether cause existed to discipline Kubiak's nursing license. The Board's complaint alleged that Kubiak had pled guilty to three driving while intoxicated ("DWI") offenses, section 577.010,¹ in 1998, 2003, and 2021. Following the evidentiary hearing, the Board placed Kubiak's nursing license on probation, in accordance with the terms and conditions outlined in the order. Kubiak filed a petition for judicial review of the Board's decision with the Circuit Court of Cole County ("circuit court"). The circuit court reversed the Board's decision and remanded the matter to the Board with instructions to dismiss the action in its present form.² This appeal follows.

"In an appeal from a judgment of a circuit court addressing the decision of an administrative agency, this court reviews the decision of the administrative agency and not the judgment of the circuit court." Owens v. Mo. State Bd. of Nursing , 474 S.W.3d 607, 608 (Mo. App. W.D. 2015). "Pursuant to Rule 84.05(e), when the circuit court reverses the decision of an administrative agency, the party aggrieved by the agency's decision files the appellant's brief. Therefore, although the Board filed this appeal as the party aggrieved by the circuit court's decision, [Kubiak] filed the appellant's brief, and the Board filed the respondent's brief." Id.

On appeal, Kubiak argues: (1) the Board erred in placing his nursing license on probation because it lacks statutory authority to issue a disciplinary order without a finding of cause for discipline by the Administrative Hearing Commission ("AHC"), in that a plea to a misdemeanor charge of DWI is not a crime of moral turpitude; and (2) the Board's probationary terms failed to consider the limitations of the Americans with Disabilities Act, in that the terms are based on speculation, stereotypes, or generalizations about individuals with disabilities rather than actual risks. Kubiak also argues that this Court lacks appellate jurisdiction because the circuit court's judgment was not a final, appealable judgment. We conclude that this Court has appellate jurisdiction to consider this appeal, and we affirm the circuit court's judgment reversing the Board's order to discipline Kubiak.

Factual & Procedural Background

Kubiak holds a license as a registered professional nurse in the State of Missouri, which was current and active at all relevant times. In April 2021, Kubiak submitted his application for renewal of his nursing license and reported in response to the questions on the form that he had pled guilty to a DWI offense, section 577.010, a class B misdemeanor on January 7, 2021. Kubiak was sentenced to 180 days in jail, with the execution of sentence suspended pending completion of two years of unsupervised probation. Kubiak's criminal record also revealed that he pled guilty to the charge of DWI on December 17, 1998, and was sentenced to thirty days in jail with the execution of sentence suspended pending completion of two years of unsupervised probation, and he had pled guilty to a class A misdemeanor DWI, section 577.010, on January 7, 2003, and was sentenced to 180 days in jail with the execution of sentence suspended pending completion of two years of unsupervised probation.

The Board's legal counsel filed a complaint against Kubiak's license and requested a hearing before the Board to discipline his nursing license, pursuant to section 335.066.16, which reads in relevant part:

(1) The board may initiate a hearing before the board for discipline of any licensee's license or certificate upon receipt of one of the following:

(a) Certified court records of a finding of guilt or plea of guilty or nolo contendere in a criminal prosecution under the laws of any state or of the United States for any offense involving the qualifications, functions, or duties of any profession licensed or regulated under this chapter, for any offense involving fraud, dishonesty, or an act of violence, or for any offense involving moral turpitude, whether or not sentence is imposed.

The Board held a hearing, and Kubiak testified regarding the circumstances surrounding the DWI conviction in 2021. Kubiak testified that he is a recovering alcoholic. After his DWI convictions in 1998 and 2003, he began attending AA meetings, but over time he stopped attending and occasionally relapsed after experiencing traumatic events in his life, such as the sudden death of his mother in a car accident in 2016.

In 2020-2021, Kubiak was working as a nurse in the critical care unit in Columbia, Missouri during the COVID-19 pandemic.

Kubiak testified that working as a nurse during the pandemic was "hot and heavy in the September through November during the surge and we were working long hours." At the time, Kubiak was living in a camper outside his home so that he would not expose his family inside the house to the virus. He also worked as a traveling nurse and spent weeks at a time living out of a hotel in St. Louis. Kubiak realized he was becoming increasingly stressed due to the long and demanding hours treating COVID patients, and he continued to take anti-depressant medication, but AA meetings were not allowed at the time due to the pandemic. Further, he was unable to meet with his counselor due to the pandemic.

During the hearing, Kubiak described one incident working in the hospital that was especially difficult and led to the relapse that resulted in the latest DWI offense. On his travel assignment in St. Louis, he had taken care of a nineteen-year-old patient who had been in the hospital for two months. On the last night of his travel assignment, the patient had coded three or four times and eventually died. Kubiak testified that after the patient died, "It was just too much. I finally broke. Broke and went to the beer again." On the drive home from the hospital, Kubiak purchased beer at a grocery store and consumed it while driving, which led to his arrest for DWI. Kubiak also briefly described his DWI arrests in 1998 and 2003, simply describing both DWI offenses as being pulled over after attending parties with friends.

The Board issued findings of fact and conclusions of law. The Board found that it had authority to discipline Kubiak's license, pursuant to section 335.066.16, because Kubiak's multiple DWI convictions within a period of twenty-two years qualify as an offense involving moral turpitude. The Board concluded, "[Kubiak's] repeated DWI offenses are contrary to good morals and the duties one owes other members of society, and places the nursing profession in a negative light. Consequently, there is cause to discipline [Kubiak's] nursing license for his guilty pleas to crimes that constituted moral turpitude." The Board placed Kubiak's nursing license on probation for five years. The terms of the probation, among others, limited Kubiak's working hours, required Kubiak to submit to drug screening, prohibited him from handling certain prescription drugs at his workplace, and required treatment programs and continuing education.

Kubiak sought judicial review of the Board's decision in the circuit court, pursuant to section 536.100. The circuit court vacated the Board's decision and remanded the case "to the Board with instructions that the case, in its present form, be dismissed." The circuit court held that this Court's decision in Owens , 474 S.W.3d 607, precluded the Board from disciplining Kubiak's nursing license without a factual determination from the AHC that cause existed to discipline Kubiak's license under section 335.066.2. The circuit court held that the Board's procedure under section 335.066.16 is unauthorized when DWI is the underlying criminal offense. This appeal follows.

Standard of Review

"In an appeal from the circuit court's review of an administrative agency's decision, this court reviews the agency's decision, not the decision of the circuit court." Owens , 474 S.W.3d at 610-11. This Court determines whether the agency's actions "are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record." Id. ; Mo. Const. art. V, section 18. We will affirm the agency's decision unless it:

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

Section 536.140.2. "We will not substitute our judgment for that of the administrative agency on factual matters, but we review any questions of law concerning an agency's decision de novo." Owens , 474 S.W.3d at 611. "On appeal, we review the administrative agency's decision rather than the judgment of the trial court; however, we affirm or reverse the trial court's judgment based upon such review of the administrative decision. Bird v. Mo. Bd. of Architects, 259 S.W.3d 516, 520 n.7 (Mo. banc 2008)." Schumer v. Lee , 404 S.W.3d 443, 445 (Mo. App. W.D. 2013).

Appellate Jurisdiction

As an initial matter, Kubiak argues this Court lacks appellate jurisdiction because...