Owens v. Mo. State Bd. of Nursing

• Citation: 474 S.W.3d 607
• Decision Date: 17 November 2015
• Docket Number: WD 78486
• Parties: Jeannie Owens, Respondent, v. Missouri State Board of Nursing, Appellant.
• Court: Court of Appeal of Missouri (US)

474 S.W.3d 607

Jeannie Owens, Respondent,

v.Missouri State Board of Nursing, Appellant.

WD 78486

Missouri Court of Appeals, Western District.

OPINION FILED: November 17, 2015

Nichole Bock, Jefferson City, MO, Counsel for Appellant.

Nicole Sublett, Jefferson City, MO, Counsel for Respondent

Before Division Two: Mark D. Pfeiffer, P.J., Lisa White Hardwick, and James Edward Welsh, JJ.

James Edward Welsh, Judge

When the Missouri State Board of Nursing revoked Jeannie Owens's nursing license pursuant to section 335.066.16(1)(a), RSMo Cum. Supp. 2013, because Owens had pled guilty to driving while intoxicated, Owens filed a petition for judicial review of the Board's decision with the Circuit Court of Cole County. The circuit court reversed the Board's revocation order concluding that driving while intoxicated was not a crime of "moral turpitude" or a crime related to Owens's ability to practice as a nurse. The Board thereafter filed this appeal with this court. 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. Bird v. Mo. Bd. of Architects, 259 S.W.3d 516, 520 n. 7 (Mo. banc 2008). 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, Owens filed the appellant's brief, and the Board filed the respondent's brief.

In this appeal, Owens contends that the Board erred in revoking her nursing license because (1) her guilty plea to driving while intoxicated is not a crime of moral turpitude or a crime reasonably related to her ability to practice as a nurse, (2) the Board has no lawful basis to impose discipline on her license for failing to report the guilty plea to the Board, and (3) the revocation of her license constitutes a punitive sanction on her license and is not necessary to protect the public. We affirm the circuit court's judgment reversing the Board's order to revoke Owens's nursing license.

Owens holds a license from the Missouri State Board of Nursing as a registered nurse. On January 4, 2011, Owens pled guilty in the Circuit Court of Cole County to the class B misdemeanor of driving while intoxicated—drug intoxication under section 577.010, RSMo.¹ The court sentenced Owens to 60 days in jail but suspended execution of the sentence and placed Owens on probation for two years.

On October 8, 2013, the Board's legal counsel filed a complaint entitled "Request for Disciplinary Hearing," asking the Board to hold a hearing pursuant to section 335.066.16(1) to determine whether cause existed to discipline Owens's nursing license. The Board's complaint alleged that Owens's license should be disciplined under section 335.066.2(2), because of the driving while intoxicated offense. The Board alleged that Owens's DWI was an offense involving moral turpitude and an offense reasonably related to the qualifications, functions, or duties of a nurse. The complaint also alleged that Owens "failed to report her plea of guilty on her 2011 and 2013 applications to renew her registered professional nursing license."

On December 5, 2013, the Board held a hearing regarding the allegations in the complaint. Owens appeared at the hearing pro se. Owens did not make any objections to the Board's evidence, which included court records related to her DWI, including the probable cause statement and copies of the license renewal applications she submitted to the Board in 2011 and 2013.

The probable cause statement filed in the DWI case stated that, on May 14, 2009, the reporting officer responded to the scene of an accident at 8200 No More Victims Road in Jefferson City, Missouri. Upon arrival at the scene, the officer found Owens's vehicle parked "on top of" another vehicle. The officer observed that Owens's clothing was on inside out and backwards and also noted that Owens appeared confused and unable to understand what the officer was asking her. According to the probable cause statement, Owens told the officer that she did not remember if she had taken any medication that day. The officer, however, located a bottle of prescription medication in plain view on the passenger side of the vehicle. The bottle contained a carisoprodol

(a generic version of Soma), a muscle relaxer, which was prescribed to Owens. The probable cause statement noted that the prescription had been filled the day prior to the accident for 90 pills, but the bottle contained only 37 pills at the time it was found by the officer.

Owens did not give any testimony on her own behalf, but she was examined by the Board's attorney. Owens testified that, on May 14, 2009, she was employed as a nurse at the Jefferson City Correctional Center. That morning, before driving to work, Owens admitted that she took two carisoprodol

tablets and an antibiotic. Owens said that she was taking carisoprodol for back pain and that she had previously taken two tablets at one time with no ill effects. She admitted that she was only supposed to take one pill every six hours but said that she took two pills because her back was "hurting really bad." She testified that, when she pulled her vehicle into her employer's parking lot, she started to feel dizzy. She said that, when she attempted to park, she backed into another car. Owens acknowledged that she had filled the prescription for 90 pills of carisoprodol

just a day before the accident, but she said that some of the pills were at her home because she did not want to carry that many pills with her. She also said that, the day she had the prescription filled, she took one to two pills every hour.

When questioned by the Board's attorney about why she did not disclose her guilty plea on her renewal applications, Owens stated: "Honestly, I was scared .... [b]ecause of the Board of Nursing. I've never been in trouble before with the Board of Nursing and I was scared." Upon further questioning, Owens admitted that she previously had a license as a licensed practical nurse that was revoked by the Board because she stole $50.00 from a co-worker.

On January 9, 2014, the Board issued its Findings of Fact, Conclusions of Law and Disciplinary Order concluding it had grounds to revoke Owens's nursing license pursuant to section 335.066.16(1)(a). The Board found that Owens's testimony was "not credible and not persuasive" and found that Owens's DWI was an offense involving moral turpitude and an offense reasonably related to the qualifications, functions, or duties of a registered nurse. The Board concluded:

The plea of guilty to driving while intoxicated-drug intoxication is cause for the Board to take disciplinary action against [Owens's] nursing license. A critical aspect of being a nurse is to be unimpaired and sober at all times. A nurse is, because of her position and training, in a crucial position to know what the effects of powerful medications such as Soma can be on the human body. A nurse in an impaired condition is a danger to herself and her patients. The Board finds over-medicating oneself to be a very troubling and worrisome activity for a nurse to be involved in. [Owens] admitted at the hearing that she was supposed to take the Soma only once every six hours, but she admitted she took two of them at the same time right before she drove to work at the prison where she was a nurse. The Board finds [Owens's] actions very troubling.

The Board also stated in its findings of fact that Owens failed to report her guilty plea on her license renewal applications for 2011 and 2013. The Board, however, did not find that Owens's failure to disclose her guilty plea was an independent basis for discipline. The Board merely noted that it did not find Owens's explanation to be "mitigating or an excuse in that nurses are expected to follow the rules set for them and be advocates for their patients." The Board further stated, "A nurse must be accountable and stand up for her actions at all times, and be willing to accept the consequences of her actions." The Board concluded that the appropriate level of discipline for Owens was revocation of her nursing license "in order to safeguard the health of the public."

On January 17, 2014, Owens filed a petition for judicial review of the Board's decision in the Circuit Court of Cole County. On March 6, 2015, the circuit court issued its Findings of Fact, Conclusion of Law and Judgment reversing the Board's decision to revoke Owens's nursing license. This appeal followed.

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. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009). " Article V, section 18 of the Missouri Constitution articulates the standard of judicial review of administrative actions." Id. On appeal, we must determine "whether the agency 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. (quoting Mo. Const. art. V, § 18 ). We, therefore, must determine whether the decision is supported by sufficient competent and substantial evidence, after considering the whole record. Id. 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.

§ 536.140.2, RSMo Cum. Supp. 2013. We will not substitute our...