IN THE DISTRICT COURT OF APPEAL OF FLORIDA

FOR THE FIFTH DISTRICT

300 South Beach St Daytona Beach Florida 32114

(904)-255-8600

 

 

JOSE N PROENZA SANFIEL. 5TH DCA CASE NO. 98-01717

R.N. OSCEOLA

Appellant(s) L.T.CASE NO DOAH 98-0553

DOAH 97-2453

AHCA 97-00006

Vs.

FLORIDA DEPARTMENT OF HEALTH

AGENCY OF HEALTH CARE

ADMINISTRATION ETC.

Appellee(s)

 

 

 

 

Date:01/05/99

 

 

APPEAL FROM THE ADMINISTRATIVE COURT

STATE OF FLORIDA

 

 

 

 

APPELLANTS MAIN BRIEF

 

 

BY

 

 

JOSE N PROENZA SANFIEL

 

 

PRO SE

4210 POW's & MIA's MEMORIAL DR

ST. CLOUD FL 34772-8142

(407)-892-9006

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

5TH DCA CASE NO 98-01717

 

 

 

PAGE NO.

  1. PREFACE________________________________ 3
  2.  

  3. TABLE OF CITATIONS________________________________ 4
  4.  

  5. STATEMENT OF CASE AND FACTS_______________ 6
  6.  

  7. SUMMARY OF ARGUMENT______________________ 14
  8.  

  9. ARGUMENT POINT OF APPEAL________________ 25
  10. CERTIFICATE OF TYPE COMPLIANCE__________ 36
  11.  

  12. CONCLUSION AND CERTIFICATE OF SERVICE___ 36

 

PREFACE

5TH DCA CASE NO 98-01717

 

 

 

Appellant is the defendant, Jose N Proenza Sanfiel R.N. and the Appellee is The State of Florida Department of Health, Board of Nursing, Agency of Health Care Administration, Department of Professional Regulation. (ETC). The parties will be referred to as THE TAXPAYER or The NURSE and THE STATE or BRANCH THERE OF.

 

The Following symbol and or abbreviations will be used.

 

  1. CHALO. _Challenge of Order (Exception to Rule)dated Nov 12th of 1997.
  2. EO. ______Emergency Order, Summary Final Order
  3. AHCA-No- 970114.

  4. FO#-1 ____DOH First Final Order No-98-0145 Dated February 2nd of 1998. The
  5. FO#-2_______DOH Second Final Order No 98-0553 dated May 26th of 1998.

5. Fl Adm C. _______Florida Administrative Code.

 

6. FS_#. __Florida Statutes and Number.

 

7. Pg_# prg# ______Page Number and Paragraph Number of mentioned

Document.

  1. R.N._______________ Registered Nurse.
  2. R.N.Code. ___ Code of Ethics From the American Nurses Association.
  3. [Record or Rec ]___5th DCA Record.
  4. (S or SR-# )_______Suplement to the Record.

12. The State_____ Department of Health State of Florida,

BON,Florida Board of Nursing, AHCA, Florida Agency

of Health Care Administration, Department of

Professional regulation.

 

 

 

  1. TR._P#. and L# ______Transcript of Record Administrative Hearing Dated August 20th of 1997.

 

TABLE OF CITATIONS.

5TH DCA CASE NO 98-0117.

 

 

STATUTES. PAGE NUMBER

 

  1. United States Constitution. Amendment I.--6,7,15
  2. United States Constitution. Amendment V.-12,21,22
  3. United States Constitution. Amendment XIV.--23
  4. Florida State Constitution. Section 2.----14
  5. Florida State Constitution. Section 4.--6,14
  6. Florida State Constitution. Section 18.----6
  7. Florida State Constitution. Section 23.----7
  8. FS-3.220.--------------------------------16
  9. FS- Chapter 20.
  10. FS-95.11(4)(a)(1)(b).---------15,20,21
  11. FS-95.11(4)(a)(1)(8) ---------------25
  12. FS-119.07 (3)(L)(1).-----------------16
  13. FS-120. -----------------------------22
  14. FS-120.52(8). -----------------------
  15. FS-120.52(8)(g). --------8,14,25,28,33
  16. FS-120.54(1)(b). --------------------33
  17. FS-120.54(1)(d). ---------------8,14,25
  18. FS-120-54(4)(3)(a) ------------------16
  19. FS-120-54(4)(a)(3). ----------------25
  20. FS-120-54(4)(a)(2) -----------------25
  21. FS-120.54(2)(g). -------------------16
  22. FS-120-54(4)(4). -------------------18
  23. FS-120.569(2)(e). -----------------33
  24. FS-120.569(3)(J). ----------------12,28
  25. FS-120.59 (1)(a). -----------------28
  26. FS-120.59 (1)(a)(2). ---------------
  27. FS-120.59 (6)(A). -------------------24
  28. FS-120.60 (6). ----------------------8
  29. FS-120.60 (6)(b). -------------------14
  30. FS-455.225(4). ----------------------32
  31. FS-455. -----------------------8,10,20
  32. FS-455.225(10). --------------------32
  33. FS-455.232(1). ---------------------32
  34. FS-455.241(1). ---------------------19
  35. FS-455.241(2). -------------------10,19
  36. FS-455.227(1)(1). -----------------28
  37. FS-455.227(1)(k). --------------10,19
  38. FS-455.227(1)(1). -----------------27
  39. FS-455.227(1)(r). -----------------20
  40. FS-455.232(1)(q). ----------------10
  41. FS-455.232(1). ------------------16
  42. FS-455.667. --------------------25,28
  43. FS-455.667.(1) ----------------19
  44. FS-455.667 (2). -----------------10,19
  45. FS-455.667 (9)(10)(13). --------7,20,25
  46. FS-464. ----------------------10,20
  47. FS-464.003(A)(1)(2)(3) -------------13
  48. FS-464.018. ---------------------18
  49. FS-464.018(1)(l). ----------------9,18
  50. FS-464.018(7)(k). -----------------18
  51. FS-464.018(7)(l). -----------------18
  1. FS-464. 018(7)(m). ------------------18
  1. Rule 59S-8.005 (1)(e)(3). --------------9,10
  2. Rule 59S-8.005 (1)(e)5. -------------9,10,18
  3. Rule 59S-8.005 (1)(e)12. -------------9,10
  4. Rule 59S-8.005 (1)(13). -------------9,10
  5. Rule 59S-8.005 (1)(e). ---------------
  6. Rule 64B9. -----------------------------23

 

***** Note FS-455.241 = FS 455.667.

***** Note FS-464 = FS-59-S8 = FS-64B9.

 

 

CASES. PAGE NUMBER.

 

  1. US Supreme Court No 292 (198 US 45 ) _______________ 23
  2. Joseph Lochner Vs People of the State

    of New York. RE: State Police Power's

    Vs Personal Liberty to Contract under

    the 14th Amendment.

     

  3. Eugene J. Strasser M.D., P.A Vs ________________ 20
  4. Bose Yalamanchi, M.D., P.A. App 4

    Dist, 669 So. 2d 1142 (1996).

     

  5. Brooks Vs the Department of Professional ____________12,34
  6. regulations (DPR) 578 So.2d 381, 16 Fla.

    L. Weekly 984 ( Fla. App. 1 Dist. 1991).

     

  7. Scott Vs (DPR) 603 So.2d 519, 17 Fla. ______________6,7,8,30
  8. Weekly D1490 (Fla.App. 1 Dist. 1992).

     

  9. United States of America, etc. v. Charter Hospital

of St, Louis, Inc. etc., et al, Case No,

94-1170-CIV-ORL-22, United States District Court,

Middle District of Florida.

 

  1. Ferris Vs Turlington 510 So 2d 297 Fla. 1987. __________17
  2.  

  3. Charter Hospital, V/s Jose N Proenza Sanfiel Et al,_____16,32

ORL-CIV-97-705.

 

 

 

 

 

 

STATEMENT OF CASE AND FACTS REGARDING 5TH DCA CASE NO 98-01717

On a date previous to January 23rd 1997 a taxpayer in the philanthropic pursuit of happiness bought a computer at a thrift shop [Record S#-11 ] [Record Pg-110 Rec. O Pg#-3 Prg#-4. Such computer was found to contain 20 Megabytes of Administrative and confidential patient information belonging to a local Psychiatric Hospital ( Charter Hospital South of Orlando ) a branch of a National Conglomerate. The taxpayer trough exposure of previous news media reports was aware that the US Government had an open case against this hospital for fraud of the Medicare / Medicaid programs to the tune of millions of taxpayers dollars. (US of America V/s Charter Hospital USDC. Case No 94-1170-Civ-Orl-22.[ Ref. Case #-5 ]

 

The taxpayer as a law abiding citizen made several good faith attempts to turn in this newly found evidence to law enforcement agencies from the grass root level to federal levels.[Record Pg-110 Rec. O Pg#-4 Prg#-8 ][Record Pg-198 or P-3 ] Due to the code of secrecy " can not discuss current investigations " and jurisdictional boundaries the taxpayer was unable to be relived of the evidence. The frustrated taxpayer decided to use his constitutional rights ( US Const. 1st Adm. And Florida Const. Section 4 ) of peacefully petitioning the Government for redress of the following grievances: (A) Lack of action in protection of the taxpayers coffers. (B) The lack of response in enforcement of violation of privacy of its citizens.

 

 

 

 

On or about Jan 23rd 1997 trough the use of the news media [ Rec. No-1 P-5 ]and [ Rec. No-2 P-6 ] a taxpayer peacefully exercising his 1st Amendment ( US Const. I Amendment) seeking redress from the Government and petitioning accountability for its failure to secure and protect evidence of the raping of the national coffers along with petition of the Government for protection of its citizens right to privacy (Fla. State Constitution Section 23 Right of privacy ) being violated by a local hospital. ( Charter Hospital of St Louis Et al ). FS-455.221(9)(11)(13)

On Jan 23rd 1997 the taxpayer initiated contact with a Fl State government representative [Record Pg#-1 EO.-prg#-18-#19., [Record Pg#-16 Adm. Co.-prg#-18-#19 ] to whom the taxpayer confided providing her with all forms of pertinent personal information including the fact that the taxpayer was a Registered Nurse with an active license to practice nursing on the State of Florida. [Record Pg#-1 EO-prg#2., Record Pg#-16 Adm. Co.-prg#2.

 

The government contact directed the tax payer to aid and abet the criminal entity by returning such evidence to the rapist of the state coffers or to give the evidence to her in order to do such turning over of evidence to the [ Ref Case#-5 ]" Accused party i.e. Charter Hospital" [Record Pg#-1 EO-prg#18 Adm. Co.-prg#18., Record Pg#-110 Rec. O Pg#-5 Prg#-15 ] Due to religious, moral and ethical belief the tax payer disregarded such counsel in this manner spurning the wrath of this Bureaucrat whom true to her word followed with retaliation towards the taxpayer disregarding his basic Constitutional and State rights previously mentioned.

 

 

On January 30th 1997 the Agency of Health Care Administration hereinafter (AHCA) or ( the state ) issued an Emergency Suspension Order [Rec. Pg#-1] hereinafter (EO) against the nursing license of Jose N Proenza Sanfiel RN#2523862 hereinafter ( The taxpayer or Nurse ). Such (EO-97-0114)or [Rec-Pg#-1] preventing The taxpayer from practicing or gaining income by the practice of his profession, violating FS-120.5(8)(g)and FS-120.54(1)(d). Regarding a contact made by the taxpayer with law enforcement agencies,[Rec-110 Rec. O Pg#4 Prg#8 ] and the news media whereas the general public was informed of negligence by law enforcement agencies to take custody of evidence via a certain computer bought by the Nurse at a local thrift shop [Record S-11 ] containing information regarding a local hospital being tried for defrauding the US Gov. via Medicaid / Medicare programs, ( US of America V/s Charter Hospital Case No. 94-1170-Civ-Orl-22) [Ref Case #-5 )and also informing the public of the Hospitals violation of patient confidentiality by the information contained in such computer and its negligent release to a second hand shop[Record Pg#-110 Recom-O.Pg#4 Prg#-7]. In blatant capriciousness and beyond its granted legislative scope of duties the AHCA felt justified in doing so by quoting " The Nurse Practice Act " Chapters of FS-464, FS-120.60(6), FS-120.54(4), and Chapters of FS 455, simply because the taxpayer had a valid Registered Nurses license even though no nursing duties had been performed under the Florida Nurse Practice Act. [Record Pg#1 EO-prg#-2., Record Pg#-16 Admin Co. prg#-2.]

 

 

 

 

On April 4th of 1997 the AHCA issued an Administrative Complaint AHCA No 97-00006 [Record Pg#-16 ] in a shotgun styled attempt reentered the same allegations contained in the initial EO and charging The Taxpayer with (30) thirty paragraphs of "Alleged facts" and VII Counts (seven violations) of nursing related practices. Record Pg#-16 Adm. Co. Par-31-45 inclusive] These counts being:

 

Count I - Violation of 59S-8.005(1)(e)3 subject to discipline under FS-464.18(1)(1)- Misappropriation of supplies, equipment or drugs. (Adm. Co. Par-31-32) [Rec-Pg#-16]

 

(*****) Count II- Violation 464.018(1)(1), FS, violating Rule 59S-8.005(l)(e)5., Florida Administrative Code, confidentiality of information. (Adm. Co. Par-33-34) [Rec-Pg#-16].

 

(*****)Count III- Violation section 464.018(1)(), FS, by knowingly violating Rule 59S-8.005(l)(e)12., by acts of negligence, either by omission or commission. (Adm. Co. Par-35-36). [Rec-Pg#-16].

 

Count IV- Violation 464.018(1)(1), FS violating Rule 59S-8.005(1)(e)13., Fl Ad C, failing to conform to the minimal standards nursing practice. (Adm. Co. Par-37-38). [Rec-Pg#-16].

 

 

 

 

(*****) Count V- Violation Section 455.241(2), FS, Respondent is subject to discipline pursuant to section 455.227(1)(k), FS by failing to perform the statutory and /or legal obligations placed upon licensees pursuant to section 455.241(2), FS. (Adm. Co. Par-39-40-41 ). [Rec-Pg#-16].

 

Count VI- Violation section 455.227(1)(q), FS violating chapter 455, chapter 464, a rule of the department or agency or the board, or a lawful order of the department or agency or the board, or failing to comply with a lawfully issued subpoena of the department or agency, to wit: Section 455.241(2), FS Rule 59S-8.005(l)(e)3. Fl Ad C, Rule 59S-8.005(1)(e)5., Fl Ad C, Rule 59S-8 005(l)(e)l2., Fl Ad C, and Rule 59S-8.005(l)e)l3. Fl Ad C. (Adm. Co. Par-42-43) [Rec-Pg#-16].

 

 

Count VII- Violation section 464.0 L g(l)(J)), FS, unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition. (Adm. Co. Par-44-45). [Rec-Pg#-16].

 

( Four of these outrageous charges were dismissed on the Administrative hearing held August 20 1998 )

 

On April 15th 1997 Respondant attorney requests for Emergency Order (EO) to be lifted and steps needed for restoring of license. [Record S-1 ]

 

On April 22 1997 The Nurse responds to Administrative Complaint, motions to strike 29 counts and submits Elections of rights disputing allegations and requesting of Hearing. [Record Pg#-27]

 

On June 4th 1997 AHCA makes notice for Compelled Mental and Physical Examination of The Nurse such examination was denied by Administrative Judge D.M. Killbride on June 25th 1998. [ Record Pg#-32 ]

 

On August 7th [ Record Pg#-66 ] and August 14th [ Record Pg#-70 ]Prehearing stipulations were exchanged between petitioner and Respondents attorney.

 

On August 20th 1997 Administrative hearing regarding instant case heard by Judge D.M Killbride in Orlando Florida.

On September 12th [ Record Pg#-94 ] and 24th [ Record Pg#-105 ] petitioner and Respondant submitted recommended orders and Respondant requests again for reinstatement of the nursing license.

 

On November 12th 1997 [ Record Pg#-116 ] Exceptions and [ Record Pg#-118 ] Exceptions addendum submitted by Respondant, on same date another Motion for reinstatement [ Record Pg#-134 ] of nursing license was entered and Motion for dismissal of charges pertaining to the case. [ Rec-Pg#-136 ] (CHALO).

December 11th 1997 (BON) Board of Nursing Meets holds the 1st hearing in Tampa Fl passes Judgement on Respondant without notification of proceedings resulting on the issue of FO-#1 or DOH-98-0145 [Rec-138] Violating FS-120.569 (3)(j).

 

January 7th 1998 Respondant requests and reminds (AHCA) of previous attempts for reinstating of Nursing license and procrastinating position of the (AHCA).

 

January 12th of 1998 Respondant notifies AHCA of discovery that BON meeting had taken place and judgement passed without notice made to Respondant. (Brooks V/s DPR 578 So.2d 381, 16 Fla. L. Weekly 984 (Fla.App. 1 Dist. 1991),. [Ref. Case #-3]

 

January 12th of 1998 Final Order [ Record Pg#-138 FO#-1 No-98-0145) of December (BON) meeting gets signed by W.Edwards Chairman of BON.[Rec Pg-138].

 

January 22nd of 1998 Letter from office of the FL Atty. General acknowledges lack of notification and second hearing by BON to be held against the taxpayer in violation of US. Const. Amendment V. and in violation of similar direction from FL-1st- DCA [Ref Case #-3 ] In the case of (Brooks V/s DPR 578 So.2d 381, 16 Fla. L. Weekly 984 (Fla.App. 1 Dist. 1991)[Record S-3).

 January 23rd of 1998 Certified Letter P-342-128-721 from AHCA informs Respondant of " Informal hearing " to take place on Feb 12th 1998 at Panama City Fl. [Record S-2 ]

  February 2nd of 1998 Service of (FO#-1)-1st Final Order DOH-98-0145 is made to Respondant. [ Record Pg#-138 ]

 February 12th 1998 BON holds 2nd formal hearing on case regardless of objection by Respondant being summoned for " informal hearing " and lack of authority under FS-Chapter 20 and FS-120.

 

May 4th 1998 BON Chairman W.Edwards signs 2nd Final Order DOH-98-0553 [ Record-Pg#-167 ].

 May 26th 1998 Respondant is served with (FO#-2) or DOH-98-0553. [ Record Pg#-167 ]

 June 25th 1998 5th DCA acknowledges receipt of appeal instant case 5th DCA Case No-98-01717. [ Record Pg#-196 ]

 

SUMMARY OF ARGUMENT REGARDING 5TH DCA CASE NO 98-01717.

 

  1. The State ( BON,AHCA,DOH)does have limited authority under FS-120.60(6)(b) to " Regulate the practice of Nursing" but by the same rule does not have rule making authority simply by " related " causes to create rule. Such attempt is noted by the issuance of (EO)to suspend The Nurses license to practice Nursing. [ Record Pg#-1 ]
  2.  

  3. The state did not adhere to the spirit of law in suspension of the nurses license in that FS-120.52(8)(g) or FS-120-54(1)(d)directs the department to protect the public from actions dangerous to the welfare of the public by the use of the less costly alternative. By suspending The Nurses license the state did not use " the less costly alternative to substantially accomplish the statutory objectives." FS-120-54 (1)(d) instead The State in violation of the rights of citizens of the state of Florida denied the nurse the right to pursue happiness " to be rewarded for industry and to acquire, possess and protect property" FL State Constitution Section 2 " Basic rights ". The state violated the rights of gainful employment and income abilities of the taxpayer therefore using the worst and highest alternative at its disposal eliminating the ability of the nurse to defend itself by hiring of counsel. By its continued course of action the State violated the rights of freedom of speech in that it punished the nurse trough its purse in order to extort his silence and keep the nurse from exercising such right of speech as noted Under FL Constitution Section 4 Every person may speak, write and publish.. In all criminal and civil actions for defamation the truth may be given in evidence if the matter charged as defamatory is true and was published with good motives the party shall be acquitted or exonerated. Furthermore the State in its attack against the Nurse violates the 1st Amendment of the US when the Nurse seeked to petition in a peaceful manner the Government for a redress of the grievance in its lack of interest for protection of it's coffers and the rights of privacy for its citizens. [Rec-110 Recom O. Pg#-4 Prg#-8] [ Exhibit P-6 ] " Wishes to demand and investigation ) and Exhibit P-3 Pg#-2 Prg#-11- 17 Exhibit P-3 Pg#-4 Prg#-8 Line 3-4.
  4. The state has no jurisdiction on the matter since the nurse was not practicing nursing at the time of his actions as defined under FS-59-S " The Nursing Practice act ". FS-464.003(a)(1)(2)(3). The nurse also had no privity nor legal obligation as defined in FS 95.11(4)(a)(1)(b). The Agency in this manner is seeking to exercise authority not granted by the Florida legislation.
  5.  

  6. The state did not adhere to the spirit of the law by denying The Nurse mediating abilities when it issued the [Record Pg#16 Adm. Co ]( Bottom of page on explanation of rights)and by offering a stipulation that amounted to an ultimatum or "Cart Blanche" to self incrimination and acceptance of punishment or charges beyond reason.
  7.  

      

  8. The state did not adhere to the spirit of the law FS-119.07(3)(l)(1) and FS-455.232(1) violating such laws regarding protection of identity of informants to the state by proving Charter Hospital personal information regarding the taxpayer i.e. informant and his wife such as Name address and nursing license numbers etc. Such admission contained in the [Record Pg#1 EO Prg#4., Prg#19_ and Record Pg#-16 Adm. Co. Prg#4 Prg#19. Resulting on a Civil suit ( Orl-CIV-97-705 )against the taxpayer and his spouse.
  9.  

     

  10. The state did not adhere to the spirit of the law FS 120.54(2)(g) when it covered multiple points of law ( 7 Counts )[Rec. 1 ] EO-Pg#-8 Prg-3 (a)(b)(c) when such law FS-120.54 (2)(g) directs the Department to be specific and cover one point per law or rule.
  11.  

  12. The state did not adhere to the spirit of the law by failing to Advertise in the Florida Administrative Weekly such emergency order ( AHCA F.O. No 97-0114 Dated 1/31/97 as required by FS-120-54 (3)(a).
  13.  

     

  14. The state did not adhere to the spirit of the law FS-3.220 " Rules of discovery" by neither providing the Appellant copies of the News broadcast tapes and that further violation of such law was followed when the Appellee switched the " Broadcast tapes" [Record Pg#1 EO.-Pg#-3 Prg#-13 Prg#-15 and Pre-hearing Stip. Pg#-2 Exhibits (1)(c)(d " with " master tapes " or dubbed " master
  15.  

     

  16. tapes of the news gathering efforts, Vs " actual footage of broadcast to the general public. " it is to be noted that the Administrative Judge erroneously accepted and was mislead by the statements of the Appellees attorney and witness. Noted by statements on [Record Transcript Adm. Hearing TR. Pages#-14 trough Pages#-19 all inclusive]. Such mention of " News Broadcast tapes of 1/23/97 " being found in the Prehearing stipulations and the Administrative hearing Submission of evidence.
  17.  

  18. The state did not adhere to the spirit of the law when it made partial statements [Record Pg#1 EO-Pg#-5 Prg#24(c)(d),. EO-Pg#-3 prg#-13)[Record S-11) indicating " misappropriation" of equipment and or supplies when quoting the Director of the Thrift shop even though the state knew otherwise Admin Complaint Page#-2 Parg#-11 " that he did not have any records of selling the computer to the nurse " the full statement being that the thrift shop does not keep any records of receipt of or sale of merchandise by any one or to any one. [RecordS#-11] Especially when the taxpayer had already informed the state of such purchase.
  19.  

     

  20. That the state has not proven by clear and convincing evidence [Ref. Case #-6 Ferris V/s Turlington 510 So. 2d 292 (Fla. 1987)] that any such individual patient information was disclosed. In light of the testimony of both expert witness introduced by the Appellee Mr. Ricci AHCA Investigator TR Page-27 Lines 7-21 and Mrs. Everett Vice President of Risk management for Charter Hospital TR Page#-35 Line#-25 followed by TR-Page#-36 Lines#-1-5. Also by the Appellees attorney's further statement in the Transcript that the Broadcast news tapes were not good enough to be seen [Record Transcript Adm. Hearing TR. Pages#14 - pages#19). Furthermore a close review of the tapes will show that no pertinent or identifying patient information was disclosed.
  21.  

  22. That the states charges (*****) Count II- Violation 464.018(1)(1), FS, violating Rule 59S-8.005(l)(e)5., Florida Administrative Code, confidentiality of information. 464.018 Disciplinary actions.--
  23. (1) The following acts shall be grounds for disciplinary action set forth in this section: (l) Knowingly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.

     

    " The provision of this chapter all encompass " the practice of nursing " and the disciplinary powers of the AHCA. The Nurse was acting as a law abiding citizen is expected to do when encountering evidence in the commission of a crime. Further more The Nurse also acted in good faith that could be claimed under FS 464.018 (7)(k)-(m) ( Nurse must report and can be charged for failure to report also FS-455.227 (1)(k) or 464.018(7)(l) that charges the nurse not to interfere with a ongoing investigation or inspection). Further more The AHCA did not at any time issue a " previous rule or subpoena previously entered by the board or department. " The State failed to prove any type of privity by the taxpayer ( the nurse) or any disclosures made by any patient to the nurse " during physical or mental examination ".

     

    12. (*****) Count V- Violation Section 455.241(2), FS, Respondent is subject to discipline pursuant to section 455.227(1)(k), FS by failing to perform the statutory and /or legal obligations placed upon licensees pursuant to section 455.241(2), FS. (***) Note FS-455.241 (2) = FS-455.667(2) that states. " (5) Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:" The law indicates that such records are those described in 455.667(1) and or 425.241(1) relate to : (4) Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person's legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, FS-455.227(1)(K) deals with 455.227 Grounds for discipline; penalties; enforcement.--

     

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

     

    (k) Failing to perform any statutory or legal obligation placed upon a licensee.

     

    The term in subsection (k) above "any" is vague and indiscriminate which could be interpreted also by the Nurse justification for claiming protection and duty 455.227 (i)(r) " to report " as a legal and moral obligation the violation of patient confidentiality by the " true records owner "[Rec-Pg#110] (Recom O.-Pg#-4 prg#-7) i.e. The hospital and it's personnel whom indeed examined and provided medications to " such patients" and whom had " privity " with the patients. FS-455.667(9)(10)(13) FS-95.11 (4)(a)(1)(b).

     

    The Nurse claims the lack of " privity " or prior Patient physician or Patient Caregiver Relationship and therefore not having legal obligation to such patients ( FS-95.11 (4)(a)(1)(b) whose records were contained in the computer. Further more the Appellant will like to bring to the attention of the court the comment made in Review of [ Ref. Case #-2 Eugene J. Strasser M.D., P.A Vs Bose Yalamanchi, M.D., P.A. App 4 Dist, 669 So. 2d 1142 (1996)] such comment noted " that once confidential information is disclosed it can not be taken back ". The hospital had already completely violated patient confidentiality upon transfer of the computer to the thrift shop [Rec-Pg#110] (Recom O.-Pg#-4 prg#-7) and such can not be taken back charging the taxpayer as the responsible party for disclosure of " confidential information ". by alerting the authorities and the

    general public of such danger. Furthermore lack of " Privity " is found by examination of 95.11(4)(a)(1)(b) or limitations of actions in reference to Malpractice responsibility establishing that "privity" is a requirement for legal obligation.

     

    13. The taxpayer further claims that the AHCA has not adhered to the spirit of the law by holding a meeting of the Board of Nursing (BON) on December 11th and passing judgement upon the nurse without proper notification or representation therefore issuing Fo#-1 DOH-980145. This being a clear violation of The 5th Amendment of the US "No person shall be deprived of life, liberty or property without due process of law.." Such meeting without representation while at all times the appellant had been requesting updates regarding the case and being available at his known address of record. Such lack of notification grants the appellant dismissal rights equally deserved and found on [Ref. Case #-3 Brooks Vs the Department of Professional regulations (DPR) 578 So.2d 381, 16 Fla. L. Weekly 984 ( Fla. App. 1 Dist. 1991) and or Scott Vs (DPR) 603 So.2d 519, 17 Fla. Weekly D1490 (Fla.App. 1 Dist. 1992).

     

  24. The Appellant further claims that The AHCA has not kept with the spirit of the law when once informed of lack notification attempted to avoid reversal of their actions ignoring previous precedental direction [Ref Case #-4 ] by 1st DCA on Scott Vs (DPR) 603 So.2d 519, 17 Fla. Weekly D1490 (Fla.App. 1 Dist. 1992). The state further violated the law by misleading the nurse as to his rights regarding " double jeopardy" as noted by

 

( Ref Letter from Gustafsson Esq. ). The AHCA summoned the Nurse to appear before the Nursing Board for a second time [Record S-2 ] at an " informal hearing " as noted in Certified Letter dated January 23rd of 1998 Certified Letter P-342-128-721 from AHCA informs Respondant of " Informal hearing " to take place on Feb 12th 1998 at Panama city Fl. Such failure of the spirit of the law US Constitution 5th Amendment " Nor shall any person be subject for the same offence to be twice put in jeopardy " (Two hearings and two Final orders on same alleged offense) was evident when the appellant was told upon commencement of the hearing that this was a formal hearing. The appellant immediately pointed out to the (BON) that his summons letter indicated an informal hearing and that he was not prepared for a formal hearing to take place and only prepared for such informal hearing as indicated. The (BON) called the letter a mistake and proceeded to continue with the formal hearing despite the continued objections of the appellant and his challenges to the (BON) of authority over him under FS-120, FS-455, FS-464 and his none practice of nursing duties at the time of the offense. It should be further noted that The Appellant Nurse did voice his wishes BON-H-#2 TR- P#10 L#16-25 to TR-P#11 L#1-2 not to give up any rights that might be due him due to compelled participation instead of simply walking out and having no venue.

 

 

15. The appellant further brings notice to the (BON) failure to adhere by the spirit of the law when by its ruling and sentencing of The Nurse DOH FO.-No 98-0145 previous punishment of probation and scope of working guidelines were changed ( further supporting argument of double jeopardy). The new punishment included specifically the areas of nursing that the nurse had been working on such as Self employed. The Use of nursing Agencies and by limiting The Nurse to Only One employer, DOH FO No 98-0553 such restrictions that had not been given before demonstrates what amounts to vindictiveness and capriciousness in light of the evidence found in the letter [ Record S-9 by Mrs. H.Webb of the AHCA and also [Record S-6] [Record S-7][Record S-8] whereas the actual record owner is found to " inadvertently " violated the patients confidentiality. Also, by limiting the Nurse to just one Employer, [ Record Pg#-167 FO-#2-Pg#-5 Prg#-2 ], the (BON) grants upon itself the ability to restrict The nurses ability for income i.e. the pursuit of happiness and capability of repairing the damage done to his families purse due to the previous restriction to his license. This restriction of labor dwells within the realm of the Labor Department and is a direct infringement on the basic constitutional and state rights of its Citizens [ Record Pg#-167 FO-#2-Pg4-L#-1-2-3. As previously noted herein and as noted in [ Ref Case #-1 ] the US Supreme Court No 292 (198 US 45 ) Joseph Lochner Vs People of the State of New York. RE: State Police Power's Vs Personal Liberty to Contract under the 14th Amendment.

 

16. The Appellant further claims that the AHCA is not following the spirit of the Law when in its punishment demands that The Nurse must take courses in Law and Ethic's of Nursing beyond the requirements of law Continuing Education Credits herein (CEU or CEU's), FS-64B9, [Record Pg#-167 FO-#2 Pg#-6 Prg#1 ] such course has been taken by the Nurse within the past 8 months of the punishment and after the instant case. To require the taking of a course beyond the set guidelines of Continuing Education that would fall within the biannual (CEU) period serves no purpose other than to bring extended financial and time restriction punishment upon the licensee in clear violation of the spirit of law and shows the capriciousness of the AHCA as mentioned in FS-120.569.

 

  1. The state has not adhered to the spirit of the law when it ordered payment for Administrative and court cost [Record Pg#-167 FO-#2 Pg#-6 Par#-3-4,. In violation of FS-120.59 (6)(A)
  2. The state has not adhered to the spirit of the law by violation FS-120.59(1)(a) and FS-120-59 (1)(a)(2) by the issue of [Record Pg#-138 FO-#1 ] (169 days) and [ Record Pg#-167 FO-#2 (282 days) well beyond the 90 day limits directed by law.

THE APPEAL NOW ENSUES

 

ARGUMENT I REGARDING 5TH DCA CASE NO 98-01717.

 

 

Emergency Order [Record Pg#1 EO-970114 ] from the DOH suspending the Nurses license was made beyond the scope of law since the nurse had not committed a violation while in the practice of nursing or to any patients that had been treated by the Nurse. Furthermore the nurse was the one that initiated contact with the state providing contact information even as far as personal beeper number that was used by the state. The simple act of having a nurses license does not make all actions by the holder a nursing action especially when nursing acts are defined under FS-464. Such Emergency Order (EO) used the most damaging and restricting avenues not the least amount of monetary damage, or restrictions etc as described appropiate under FS-120.52(8)(g) and or FS-120.54(1)(d). Such ( EO ) was not properly followed trough as required by 120.54 (4)(a)(3) and violation of 120.54(4)(a)(2).

 

ARGUMENT II REGARDING 5TH DCA CASE NO 98-01717.

 

 

The State has failed to show the existence of " Privity " or legal obligation by the nurse (FS-95.11 (4)(a)(1)(8). At no time did the Nurse provided " treatment " "examined" or administered legend medications to any of the patients found on the computer. The nurse at no time entered into a caregiver patient relationship with such patients as required under FS-455.667 inclusive and specifically FS-455.667 (9)(10)(13),. That the nurse did not create, record, or entered into a record of any patient information on or of such patients.

 

 

ARGUMENT III REGARDING 5TH DCA CASE NO 98-01717.

The state has failed to prove with clear and consissive evidence [Record Pg#-110 ] Recommended Order Page#-6 Parg#-21) ( Ferris Vs Turlington 510 So 2d 297 Fla. 1987) that the nurse violated any patients confidentiality due to the fact that no patient has come forward or has been identified as being identified by the nurse and no information what so ever has been identified as to belonging to any individual or originating from the computer while under the care of the taxpayer. No patient name and patient pertinent information can be identified and only general terms are expressed or found to be relevant to any individual with the news sources references being quoted as hearsay evidence that would be inadmissible with objection in a civil action due to lack of examination and cross examination. Specifically when the testimonies of both of the State expert witnesses [Record Transcript Adm. Hearing TR-Pg#-27 L#-7-21 ) Mr. Ricci and (TR-Pg#-35 L#-25 followed by PG#-36 L#-1-5) Mrs. Everett reveal no disclosure of information. Also trough the careful review of the broadcast tapes in evidence.[Record Exhibits P-5 and P-6.]

 

ARGUMENT IV REGARDING 5TH DCA CASE NO 98-01717.

 

 

Referenced exhibits of news reports were not properly provided to Appellee per rules of discovery and the exhibits were switched from the News reports aired on January 23rd to master copies of nonaired news footage. Even then such footage reveals information that does not identify specific patients and or their records further indicating the zealousness exhibited by the Nurse in the protection of the patient information unlike the totality of information that had been released by the original records owners whom should be charged with violation of FS-455.667 (9)(10)(13).

 

 

ARGUMENT V REGARDING 5TH DCA CASE NO 98-01717.

 

 

The DOH is showing capriciousness FS-120.52 (8)(a)-(g) inclusive, in its rulings and actions by charging the taxpayer with violations of the nurse practice act even though FS-455.227(1)(i) the nurse was acting as a law abiding citizen in the reporting of found evidence ( US V/s Charter Hospital et al, Case No 94-1170 USDC Civ-Orl-22., on an ongoing investigation and in the protection of the public by informing the same of violations of patient privacy while at the same time in capriciousness the DOH fails to charge the actual records owners FS-455.241 or FS-455.667 and calling their negligent act as " an inadvertent act " or not worthy of investigation as noted in ( SR-9 ), ( SR-6), ( SR-7), ( SR-8),.

 

 ARGUMENT VI REGARDING 5TH DCA CASE NO 98-01717.

 

That the AHCA failed to respond in a manner prescribed by law to the exceptions submitted by the nurse [Rec-Pg#-116][Rec-Pg#-118] and also failed to offer at appropiate intervals such nurses license as described by law [Rec-134 (SR-1) ] disregarding multiple request for such re-instating of license and going beyond the allotted times under FS-120-569 (3)(j), FS-120.59 (1)(a), FS-120.59(a)(2) " 90 days for the submission of a final order on proceedings affecting individuals.

 

 

ARGUMENT VII REGARDING 5TH DCA CASE NO 98-01717.

 

That the BOH is attempting to create rule by acting outside of its intended scope and designation given by legislation as expressed in Chapter 20 of the Florida Statutes specifically FS-120.52(8)-(8)(g) and in the process has violated numerous laws by simple related matters fueled by the wrath of a spurned bureaucrat that knew the right buttons to push.

 

 

 

ARGUMENT VIII REGARDING 5TH DCA CASE NO 98-01717.

 

  1. That the BON has not followed the spirit or direction of law in that it issued a Second Final Order in the same case and charges attempting to deny the Appellant his rights under the law of appeal to [Record Pg#-138 F0-#1 98-0145 (***169 days) as granted by FS-120.569 ( right to appeal all final orders from the board) ( and ) specifically violating the directions of the [Ref. Case#-3 ] 1st DCA to proper notification as previously ruled under Brooks Vs the Department of Professional regulations (DPR) 578 So.2d 381, 16 Fla. L. Weekly 984 ( Fla. App. 1 Dist. 1991)..

 

CONCLUSION REGARDING 5TH DCA CASE NO 98-01717.

 

I present my case to the 5th DCA as a freeman and as a citizen of The Great State of Florida in a matter that is of great public importance is of those very basic rights for every citizen of the USA and our State. The decisions of this court will have great affect on the proper administration of justice throughout the State specifically in the reporting of criminal behavior by any citizen holding professional licenses.

 

While an investigation and prosecution of a fraudulent entity Vs the coffers of the state via Medicaid and Medicare were being carried out against Charter Hospital as evidenced by United States of America, etc. v. Charter I-Hospital of St, Louis, Inc. etc., et al, Case No, 94-1170-CIV-ORL-22, United States District Court, Middle District of Florida a law abiding citizen in the pursuit of philanthropic happiness bought a computer at a thrift shop and legally came upon what he believed to be evidence that would assist the US Government in the recuperation of revenue and would assist in administration of justice as the Federal Judiciary may rule. Also such legally obtained information also indicated another major violation of law that being negligent release of private and personal psychiatric information by the records owner i.e. Charter Hospital. FS-455.667 ..

 

Such law abiding citizen made good effort in contacting the appropiate authorities to take charge of the evidence mentioned. Due to ambivalence in jurisdiction and or lack of action by any

 

specific authority this law abiding citizen contacted the local media in an effort to alert the public of this threat to the general public that warranted such importance when it pleases the state to persecute the taxpayer yet not sufficient for the taxpayer to act in alarm..!! (The Taxpayer did not scream fire on a crowded hall..)obtain assistance in bringing this lack of interest in both clear violations of law. The news media did its job alerting the public and the authorities of the problem at hand. As a result the law abiding citizen was able to contact a bureaucrat whose solution to the problem was indicating to the "the taxpayer" to give his legally obtained property i.e. evidence back to the purported criminal entity. The other solution of giving such private property to the bureaucrat so that she could give it to the offending entity.

 

The taxpayer reasonably cooperated and fully identified himself and his with purpose properly as an informant to this bureaucrat representing the government and also informed such bureaucrat that such directions to act did not sound prudent or wise. Upon full identification the bureaucrat noticed that the taxpayer was a Licensed Professional ( a Registered Nurse ) and begun cohercing or intimidating of the Nurse with suspension of the professional license to practice unless he complied.

 

The nurse under the belief that such directions and intimidation's were improper and morally repugnant declined to discuss the matter any further or having anything to do with some

one that appeared to be aiding and abetting criminal behavior.

 

The spurned bureaucrat decided to act on the mentioned retaliatory actions and begun to push all the right buttons in order to initiate the mighty wheels and powers of the state against the taxpayer instead of the estatuorialy culpable and negligent "records owner".

 

This bureaucrat ignored the duties of reviewing, indexing and investigating or turning the evidence over for use on the ongoing Federal Court case. Instead the state called the negligent release of information by the Hospital as " Inadvertent " and regrettable in clear violation of FS-455-241., ( SR-9 ) (SR-6) (SR-7) (SR-8)

 Instead all of the fury and efforts of "the state " begun to crush the "the taxpayer" as if he was truly the criminal and responsible party. The State utilized the worst possible means at its disposal along with procrastinating tactics to ensure that one way or another the taxpayer would learn his lesson of dearing to say no to a bureaucrat.

 

The State ignored the fact that the nurse had no "privity" with the patients, and in collusive behavior the system further ignored the law of confidentiality of informants to the state and threw the Good Sam to the wolfs by violation of FS-455.232(1), FS-455.225(4), FS-455.225(10) and releasing his particulars to the purported criminal element to go after the law abiding citizen trough civil litigation as noted in Orl-Civ-97-705 Charter V/s Jose N Proenza Sanfiel Et, al. ( Administrative Complaint Pg#-4 Prg-#19) and EO-prg#-19

 

The State further aided and abetted the criminal element V/s the taxpayer trough the abuse of its Emergency Powers by charging him with the violations that should of rightfully been implemented against the Hospital whom did have privity and duty to the patients and whom by its previously " Alleged " criminal behavior and national corporate expanse indeed represented a true calling of the Emergency powers.

 

The State violated the spirit of the law in several occasions in its blind persecution of the wrong party it did so by initially removing the ability of the Good Sam to earn income and retain proper defense aided by gainful employment( violation of FS-120.54(1)(b) least monetary option )FS-120.54(6)(b) an unlawful Emergency order was created simply due to closely related matters ( Violation of FS-120.52(8)(g) ) It violated the law of EO by not publishing on the Administrative weekly and also by making the EO related to multiple violations instead of one as directed by law FS 120.569(2)(e).

 

The crushing wheels of misguided justice further continued by the creation of an Administrative complaint and demanding a Mental and Physical evaluation of the taxpayer purportedly in that any one that dares to stand up or questions the " powers to be " must be either on drugs or a lunatic instead of a conscientious law abiding citizen.

 

 Luckily such request was declined trough legal exception. However the spurned bureaucratic machine was not to be detained and further action continued in the manner of an Administrative hearing. In such hearing the evidence was misrepresented by the switching of video tapes from actual news broadcasts to raw footage and even though two state introduced expert witnesses testified that no confidential matter was released. The not so clear and non defined evidence was accepted as a violation of confidentiality not based on the actual information found on the tapes but on here say evidence reported on such tapes. ( this is not clear and convincing evidence by any means )

 

The already misguided path of the systems machinery continued plowing trough the life of the Good Sam by ignoring requests of reinstatement of his nursing license in order to provide for his family.

 

Further blinded driving force was noted when the BON declared the taxpayer guilty " in Absentia " issuing a Final Order #-1 without allowing the taxpayer the opportunity to defend his actions as provided under US and Florida Constitutions including FS-Chapt-20 and FS-120.

 

The taxpayers complaint of lack of representation instead of bringing an end to his misery and reinstatement as allowed by law on previous Court case and direction of the DCA as found on Brooks vs. DPR 578 So.2d 381, 16 Fla. L Weekly 984 ( Fla App. 1 Dist. 1991 ) brought further misery and deceit by being informed trough certified letter of an informal hearing to be held in violation of the above direction by the 1st DCA and by false representation of the double jeopardy law. Upon presenting himself to the mercy of the BON he was informed that a Formal hearing was to be held instead of the aforementioned informal hearing. The taxpayers cry of foul were ignored and the Railroad of Administrative punishment was directed indiscriminately.

 

Such actions are the ones that bring us here today. It is respectfully requested that this Florida DCA brings this unjust railroading of justice to a halt by declaring the actions of the state as illegal and without foundation restoring the taxpayers ability to earn wages and pay taxes once again. It is further respectfully asked that this Court wipe this nurses record clean also granting that the taxpayer be provided with the lost funds related to this case. It is further requested that this court further direct the State to initiate an independent and proper investigation of this whole affair as was initially requested by the taxpayer and in addition such investigation includes the behavior and actions by " Public servants " that have led to such horrendous suffering of this Good Sam.

Furthermore it is requested that this court orders that measures be initiated so that this does not happen again.

 

 

 

 

 

Certificate of compliance.

 

I hereby certify that this document complies with FS9.210 for font and pitch size such being Courier 12.

 

_____________________________________

Jose N Proenza Sanfiel R.N. 4210 Pow's & Mia's Memorial Dr St Cloud Fl 34772-8142.

 

 

 

 

CERTIFICATE OF SERVICE.

I hereby certify that a true and correct copy of the foregoing has been furnished by US Mail to: Kathryn L Kasprzak AHCA PO Box 14229 Tallahassee Fl 32317. 5th District Court of Appeals 300 South Beach St Daytona Beach Florida 32114.

 This day _10th_ __Month of December in the year of __1998____ A.D.

 

___________________________________________

Jose N Proenza Sanfiel R.N. 4210 Pow's & Mia's Memorial Dr St Cloud Fl 34772-8142.


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I have been caring for the American Way of life for a while now.... you can see the other part of me on the other Web Site that I also maintain. That Web-Site deal's with the POW/MIA Issue Please visit it and get involved there are still men left behind and they need your help also. Visit " THE REAPER'S EDGE A POW's SCREAMED ECHO IN CYBERSPACE "


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