Stewart v. West Virginia Bd. of Examiners for Registered Professional Nurses
| Decision Date | 15 July 1996 |
| Docket Number | No. 23147,23147 |
| Citation | 197 W.Va. 386,475 S.E.2d 478 |
| Court | West Virginia Supreme Court |
| Parties | , 11 IER Cases 1853 Kristina Beth STEWART, Petitioner Below, Appellant, v. WEST VIRGINIA BOARD OF EXAMINERS FOR REGISTERED PROFESSIONAL NURSES, Respondent Below, Appellee. |
Syllabus by the Court
1. "Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong." Syl. pt. 1, Francis O. Day Co. v. Director of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994).
2. Syl. pt. 3, In re: Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996).
Joni S. Rundle, Rundle & Rundle, L.C., Pineville, for Appellant.
Darrell V. McGraw, Jr., Attorney General, Alice R. Faucett-Carter, Assistant Attorney General, Charleston, for Appellee.
This case is before this Court upon an appeal from the final order of the Circuit Court of Wyoming County, West Virginia, entered on January 19, 1995. Pursuant to that order, the circuit court affirmed a decision of the West Virginia Board of Examiners for Registered Professional Nurses which suspended the probationary license of the appellant, Kristina Beth Stewart, to engage in the practice of registered professional nursing in West Virginia. The Board suspended the appellant's probationary license for five years, or for at least two years after all legal matters relating thereto have been settled, whichever is longer.
This Court has before it the petition for appeal, all matters of record, including a transcript of the administrative hearing conducted by the Board, and the briefs of counsel. For the reasons stated below, this Court affirms the final order of the circuit court.
In March 1994, the appellant submitted an application to the West Virginia Board of Examiners for Registered Professional Nurses for a license to practice registered professional nursing in West Virginia. As required by the Board, the appellant disclosed upon her application that she had been convicted in 1991 in the Circuit Court of Cabell County, West Virginia, of a felony offense concerning the delivery of a controlled substance. W.Va.Code, 60A-1-101, et seq. [1983]. In view of the disclosure, the Board and the appellant entered into a written consent agreement dated July 19, 1994, whereby the appellant was issued a probationary license to practice registered professional nursing. As the agreement provided, however, the license was issued upon various conditions. One of the conditions was that the appellant would not violate the provisions of W.Va.Code, 30-7-1, et seq. [1992], concerning the licensing requirements for the practice of registered professional nursing. Another condition was that the appellant would submit to unannounced drug-screen tests. With regard to the latter condition, the consent agreement stated: "Receipt of a positive drug screen is deemed to be a violation of this agreement, and shall result in immediate suspension of Stewart's probationary license."
On August 23, 1994, an employee of the Board monitoring probationary licenses directed the appellant to take a drug-screen test. Accordingly, a urine sample was received from the appellant that day by Mary Lou Griffith, a nurse employed by Doctor's Immedicare, Inc., of Beckley, West Virginia. The sample was then sent by Ms. Griffith to Roche Biomedical Laboratories in North Carolina for testing. As the hearing examiner for the Board stated, Roche Biomedical Laboratories found that the sample tested "positive for cocaine use."
Thereafter, on August 30, 1994, the West Virginia Board of Examiners for Registered Professional Nurses notified the appellant by telephone and in writing that, as a result of the drug-screen test, the appellant's probationary license was suspended. At that time, the appellant was also notified, in writing, that an administrative hearing would be conducted in the matter on September 6, 1994.
At the September 6 hearing, the Board adduced testimony from witnesses concerning the consent agreement and the result of the drug-screen test. In particular, exhibit no. 2 of the Board, admitted into evidence, was a laboratory report from Roche Biomedical Laboratories indicating that the sample taken from the appellant had tested positive for cocaine use. On the other hand, the appellant, who appeared at the hearing pro se, asserted that the Board had not established a proper chain of custody concerning the transfer of the urine sample from Doctor's Immedicare, Inc. to Roche Biomedical Laboratories and that, in any event, the drug-screen test was invalid because of several medications the appellant had taken with regard to her hospitalization on August 6, 1994, through August 9, 1994, for an ankle injury. In addition, the appellant submitted an independent drug-screen test from Southern West Virginia Clinic of Beckley, West Virginia, dated August 31, 1994, finding no presence of cocaine.
Following the hearing, the hearing examiner submitted a recommended decision to the Board containing findings of fact and conclusions of law. In particular, the hearing examiner found "no breaches of protocol" concerning the transfer or testing of the urine sample. Furthermore, the hearing examiner found that the appellant had, in fact, tested positive for cocaine use and that such use constituted a breach of the consent agreement between the Board and the appellant.
On October 12, 1994, the recommended decision of the hearing examiner was adopted by the West Virginia Board of Examiners for Registered Professional Nurses, and the probationary license of the appellant was suspended for five years, or for at least two years after all legal matters relating thereto have been settled, whichever is longer. On January 19, 1995, the circuit court determined, inter alia, that the ruling of the Board was not "unsupported by substantial evidence" and affirmed the suspension. This appeal followed.
Chapter 30 of the West Virginia Code is entitled "Professions and Occupations," and article 7 thereof provides for the licensing of registered professional nurses. As expressed in W.Va.Code, 30-7-2 [1994], the purpose of the license requirement is to safeguard the "life and health" of the public. Pursuant to W.Va.Code, 30-7-11 [1965], however, the West Virginia Board of Examiners for Registered Professional Nurses may revoke or suspend a license or otherwise discipline a licensee, if the licensee has been convicted of a felony or is addicted to the use of habit-forming drugs, or "[i]s guilty of conduct derogatory to the morals or standing of the profession of registered nursing[.]"
In this case, the Board has focused upon the latter provision concerning "conduct derogatory to the morals or standing of the profession." In Code of State Rules, 19-9-5.1.11 (1994), which details the Board's disciplinary authority, that phrase is interpreted to include, as misconduct, "failing to comply with terms and conditions as may be imposed by the board based upon previous disciplinary action of the board." According to the West Virginia Board of Examiners for Registered Professional Nurses, the appellant failed to comply with the terms and conditions of the July 19, 1994, consent agreement by testing positive for cocaine use, and, therefore, the Board had the power, under the above authorities, to suspend her probationary license.
Nevertheless, both chapter 30 of the West Virginia Code and Code of State Rules, 19-5-1, et seq. (1993), and 19-9-1, et seq., (1994), provide that a licensee subject to disciplinary proceedings conducted by the West Virginia Board of Examiners for Registered Professional Nurses is entitled to notice of the transgression and an administrative hearing thereon. As W.Va.Code, 30-1-8(a) [1978], states: "Notwithstanding any other provision of law to the contrary, no certificate, license, registration or authority issued under the provisions of this chapter may be suspended or revoked without a prior hearing before the board or court issuing said certificate, license, registration or authority." See W.Va.Code, 30-7-16 [1965]. Specifically, as various references in Code of State Rules, 19-5-1, et seq., (1993) make clear, disciplinary proceedings conducted by the Board concerning the practice of registered professional nursing are subject to the "contested cases" provisions of the State Administrative Procedures Act. W.Va.Code, 29A-5-1, et seq. [1964]. See also Ruble v. Secretary of State, 192 W.Va. 134, 137, 451 S.E.2d 435, 438 (1994); Serian v. State Board of Optometry, 171 W.Va. 114, 117, 297 S.E.2d 889, 892 (1982).
Judicial review of a decision of the West Virginia Board of Examiners for Registered Professional Nurses is authorized under both the provisions of the State Administrative Procedures Act and W.Va.Code, 30-1-9 [1931]. As W.Va.Code, 30-1-9 [1931], states: This Court has associated the "clearly wrong" standard with the review of evidentiary findings, 1 whereas conclusions of law are subject to de novo scrutiny. Syl. pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994); syl. pt. 1, Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).
As observed in syllabus point 1 of Francis O. Day Co. v. Director of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994): "Evidentiary findings made at an administrative hearing...
To continue reading
Request your trial