State Board Of Nursing

• Court: Missouri Court of Appeals
• Citation: State Board Of Nursing, 32 S.W.3d 638 (Mo. App. 2000)
• Decision Date: 28 November 2000
• Parties: (Mo.App. W.D. 2000) . State Board of Nursing, Appellant, v. JoAnn Berry, Respondent. Case Number: WD58043 Missouri Court of Appeals Western District Handdown Date:

32 S.W.3d 638 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State Board of Nursing, Appellant, v. JoAnn Berry, Respondent.

Case Number: WD58043

Missouri Court of Appeals Western District

Handdown Date: 11/28/2000

Appeal From: Circuit Court of Cole County, Hon. Byron L. Kinder

Counsel for Appellant: Rikki L. Jones

Counsel for Respondent: Larry Darnell Hale

Opinion Summary:

The Missouri State Board of Nursing appeals the decision of the Administrative Hearing Commission , as affirmed by the circuit court, finding no cause to discipline JoAnn Berry's LPN license under sections 335.066.2(1), (12), or (14), RSMo Cum. Supp. 1998. The Board contends that the AHC erred in failing to find cause to discipline Ms. Berry's LPN license, claiming that possession of cocaine and marijuana, in violation of section 195.202, RSMo 1994, a criminal statute applicable by section 335.066.2(14), was proven and constitutes the requisite cause.

AFFIRMED.

Division III holds: While the Board's unrebutted evidence revealed that Ms. Berry consumed marijuana and cocaine, and tested positive for the presence of marijuana and cocaine, no evidence was offered that Ms. Berry consciously or intentionally consumed or possessed marijuana and cocaine in violation of section 195.202, RSMo 1994. The Board failed to establish by a preponderance of the evidence cause to discipline Ms. Berry's license under section 335.066.2(14).

Opinion Author: Robert G. Ulrich

Opinion Vote: AFFIRMED. Smith, P.J., and Ellis, J., concur.

Opinion:

The Missouri State Board of Nursing (the Board) appeals from the decision of the Administrative Hearing Commission (AHC), as affirmed by the Circuit Court of Cole County, finding no cause to discipline JoAnn Berry's LPN license under sections 335.066.2(1), (12), or (14), RSMo Cum. Supp. 1998.¹ The Board contends that the AHC erred in failing to find cause to discipline Ms. Berry's LPN license, claiming that possession of cocaine and marijuana, in violation of section 195.202, RSMo 1994, a criminal statute applicable by section 335.066.2(14), was proven and constitutes the requisite cause.² The judgment of the circuit court affirming the decision of the AHC and the decision of the AHC are affirmed.

Facts

JoAnn Berry, an LPN, submitted an application for employment to the Spanish Lake Nursing Center located in Florissant, Missouri, on March 19, 1996. As part of the application process, she was required to submit to a pre-employment urine drug screen. Ms. Berry's urine drug screen tested positive for the presence of marijuana and cocaine.

The Board filed a complaint with the AHC on August 5, 1998, because of the positive test results, alleging that cause existed for the Board to discipline Ms. Berry's LPN license pursuant to sections 335.066.2(1), (12), and (14). During the course of the Board's action against Ms. Berry, the Board sent Ms. Berry a Request for Admissions and a copy of Supreme Court Rule 59.01. Contained within the Board's Request for Admissions were statements that Ms. Berry had consumed marijuana and cocaine on or about March 19, 1996, and that she had submitted to a pre-employment urine drug screen. When Ms. Berry failed to respond to the Board's Request for Admissions within thirty days, the statements contained within the Board's Request for Admissions were deemed admitted as provided by Rules 59.01 and 61.01(c).³ After the AHC determined that Ms. Berry received the Board's Request for Admissions and failed or refused to answer the included questions, the admitted questions were admitted as evidence.

The AHC, after an evidentiary hearing, found that the Board had not established cause to discipline Ms. Berry's license under sections 335.066.2(1), (12), or (14). The Board filed a petition for judicial review in the Circuit Court of Cole County. The circuit court affirmed the decision of the AHC on November 5, 1999. The Board's appeal followed.

Standard of Review

The appellate court reviews the decision of the AHC, not the judgment of the circuit court. EBG Health Care III, Inc. v. Missouri Health Facilities Review Comm., 12 S.W.3d 354, 358 (Mo. App. W.D. 2000). This court will consider the evidence and all reasonable inferences from the evidence in the light most favorable to the administrative agency's findings. Id. If the AHC could have reasonably made its findings and reached its result, the court on appeal may not substitute its own judgment for that of the AHC. Harrington v. Smarr, 844 S.W.2d 16, 18 (Mo. App. W.D. 1992). The fact-finding function rests with the AHC, and even if the evidence would support either of two findings, the court is bound by the AHC's factual determination. Id. The appellate court's function on review is limited to determining whether the AHC's decision is supported by competent and substantial evidence, or is arbitrary, capricious, unreasonable or constitutes an abuse of discretion. EBG Health Care III, 12 S.W.3d at 358. The Missouri Supreme Court has defined substantial evidence to be:

... evidence which, if true, has probative force upon the issues, i.e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced.

Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 820 (1954). While the appellate court cannot substitute its own judgment on factual matters, it can independently determine questions of law. Psychare Mgmt., Inc. v. Dep't of Soc. Servs., Div. of Med. Servs., 980 S.W.2d 311, 312 (Mo. banc 1998).

Point on Appeal

As its sole point on appeal, the Board contends that the AHC erred in failing to conclude that Ms. Berry possessed marijuana and cocaine in violation of Chapter 195, RSMo, thereby authorizing discipline of her license under section 335.066.2(14). The Board asserts that possession of a controlled substance, as proscribed in section 195.202, RSMo 1994, can be established in section 335.066 proceedings by a preponderance of the evidence with a positive drug screen alone or in combination with other corroborating evidence. The Board asserts that it satisfied its burden of proving Ms. Berry's possession of a controlled substance with the evidence that Ms. Berry tested positive for the presence of marijuana and cocaine within her body and by her admission that she consumed the illegal drugs, therefore, requiring that Ms. Berry's license be disciplined under section 335.066.2(14).

Section 335.066

Chapter 335 of the Nursing Practice Act governs the licensing of the nursing profession in Missouri. Section 335.066.2 provides fifteen causes for disciplining a nursing license. In this administrative proceeding, the Board alleged it had cause to discipline Ms. Berry's nursing license for the following three causes enumerated in subsections of section 335.066.2: (1) Use or unlawful possession of any controlled substance . . . to an extent that such use impairs a person's ability to perform the work of any profession licensed or regulated by sections 335.011 to 335.096; (12) Violation of any professional trust or confidence; (14) Violation of the drug laws or rules and regulations of this state, any other state or the federal government.

The AHC addressed each of the three alleged causes for disciplining Ms. Berry's license in its Findings of Fact and Conclusions of Law. The AHC held that the Board failed to prove its case under sections 335.066.2(1) and (12). As to subsection (14), the AHC concluded that the evidence that Ms. Berry had two controlled substances in her system, which she admitted consuming, was alone inadequate to establish that Ms. Berry violated a state or federal statutory prohibition against possessing marijuana or cocaine. The Board appeals only the AHC's decision that no cause exists for discipline under section 335.066.2(14); the Board does not raise any claim of error regarding the AHC's decision as it pertains to sections 335.066.2(1) and (12).

Section 335.066.2(14)

Section 335.066.2(14) is dependant on existing criminal statutes and is not self sustaining. Subparagraph (14) provides that the "[v]iolation of the drug laws or rules and regulations" of any state or the federal government is a basis for disciplining a license. Although 335.066.2(14) makes violation of any federal or state statute prohibiting the possession of illegal drugs reason for disciplining a license, the Board referenced only section 195.202, RSMo 1994. Section 195.202 requires proof of the conscious and intentional possession of a contraband drug. State v. Yahne, 943 SW 2d 741, 745 (Mo. App. W.D. 1997) (citing State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992)). Thus, conscious and intentional possession of a contraband drug is a basis for disciplining a license under 335.066.2(14).

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