I can't wait to see what this brings. I can't make it much clearer than this- Just the fact's for the court and for your evaluation.


APPELLANTS REPLY BRIEF 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:03/02/99

 

 

APPEAL FROM THE ADMINISTRATIVE COURT

STATE OF FLORIDA

 

 

 

 

APPELLANTS REPLY BRIEF

 

 

BY

 

 

JOSE N PROENZA SANFIEL

 

 

PRO SE

4210 POW's & MIA's MEMORIAL DR

ST. CLOUD FL 34772-8142

 

 

 

 

Table of Contents.

TABLE OF CONTENTS Page No.

PREFACE -------------------------------------- Page#-3

TABLE OF CITATIONS ----------------------Page#-4,5,6,7

PRELIMINARY STATEMENT ------------------------ Page#-8

STATEMENT OF THE CASE ------------------------Page#-10

STATEMENT OF THE FACTS -----------------------Page#-21

SUMMARY OF THE ARGUMENT ----------------------Page#-25

ARGUMENT -------------------------------------Page#-31

Argument I. ----------------------------------Page#-31

ArgumentII------------------------------------Page#-34

Argument III ---------------------------------Page#-35

Argument IV-----------------------------------Page#-36

Argument V------------------------------------Page#-37

Argument VI ----------------------------------Page#-38

Argument VII ---------------------------------Page#-40

Argument VIII --------------------------------Page#-42

CONCLUSION------------------------------------Page#-44

CERTIFICATE OF SERVICE------------------------Page#-43

CERTIFICATE OF TYPE COMPLIANCE----------------Page#-44

 

 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. ABA. Pg#- Prg#- L#-_Answer Brief of Appellee Page, Paragraph,Line.
  2. AIB.________________Appellants Initial Brief.
  3. CHALO. _____________Challenge of Order (Exception to Rule)dated Nov 12th of 1997.
  4. EO. ________________Emergency Order, Summary Final Order AHCA-No- 970114.
  5. FO#-1 ___________DOH First Final Order No-98-0145 Dated February 2nd of 1998.
  6. FO#-2_______________The 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-# )_______Supplement to the Record.
  5. The State_________ Department of Health State of Florida,

BON, Florida Board of Nursing, AHCA, Florida Agency

of Health Care Administration, Department of

Professional regulation.

12. 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.-----8,7,9
  2. United States Constitution. Amendment V.--------11
  3. United States Constitution. Amendment VII.-------8
  4. United States Constitution. Amendment XIII.------8
  5. United States Constitution. Amendment XIV.--------
  6. Florida State Constitution. Section 2.------------
  7. Florida State Constitution. Section 4.-------22,42
  8. Florida State Constitution. Section 18.--------AIB
  9. Florida State Constitution. Section 23.-- --- AIB
  10. FS-3.220.----- ------------------------ AIB
  11. FS-95-(1)(b)(11)(4)----------------------22
  12. FS-95.11(4)(a)(1)(b).--- ------------------24
  13. FS-95.11(4)(a)(1)(8) -------------------- AIB
  14. FS-119.07 (01)---- ---------------------37
  15. FS-120. ---(7)--------------------------- AIB
  16. FS-120.52(8). --------------------------10,40
  17. FS-120.52(7). -----------------------------19
  18. FS-120.52(8)(g). -----------------------10,40
  19. FS-120.54(1)(b)(2)-------------------------43
  20. FS-120.54(1)(d). ---------------------43
  21. FS-120.54(2)(e). -----------------------10,37
  22. FS-120-54(4)(3)(a) ----------------------33
  23. FS-120-54(4)(a)(3). ----------------------25
  24. FS-120-54(4)(a)(2) ------------------13,25,27
  25. FS-120.54(2)(g). -----------------------16
  26. FS-120-54(4)(4). -------------------------18
  27. FS-120.569.-----------------18,19,20,40,41
  28. FS-120.569(3). -------------------------16
  29. FS-120.569(3)(J). ----------------------12,28
  30. FS-120.57(1)(j). -------------------------8
  31. FS-120.59. -----------------------------18,30
  32. FS-120.59 (1)(a). ---------------------- AIB
  33. FS-120.59 (1)(a)(2). ------------------- AIB
  34. FS-120.59 (6)(A). ---------------------8,9,30
  35. FS-120.60 (6). --------------------------9,43
  36. FS-120.80(4)(b). -------------------------19
  37. FS-120.60 (6)(b). -------------------------14
  38. FS-455.225(4). ---------------------------25
  39. FS-455.227. -------------------------------32
  40. FS-455. ---------------------------- AIB
  41. FS-455.225(10). ---------13,22,24,25,27,28,37
  42. FS-455.232(1). -------------------------- AIB
  43. FS-455.241(1). -------------------------- AIB
  44. FS-455.241(2). -------------------------- AIB
  45. FS-455.227. ----------------------------- 37
  46. FS-455.227(1)(k). ----------------------- AIB
  47. FS-455.227(1)(1). ----------------------- AIB
  48. FS-455.227(1)(r). ----------------------- AIB
  49. FS-455.232(1)(q). ----------------------- AIB
  50. FS-455.232(1). -------------------------- AIB
  51. FS-455.617(1)(5). -----------------------10
  52. FS-455.621(3). -------------------------10,13
  53. FS-455.621(3). -------------------------20
  54. FS-455.621(4). ---------------11,25,27,28
  55. FS-455.621(11). ---------------------35,42,43
  56. FS-455.621(10)(12a-c). --------------25,42,43
  57. FS-455.624. ------------------------27,37,40
  58. FS-455.664 (4)---- -------------------22,24
  59. FS-455.667. ----------------------------- AIB
  60. FS-455.667.(1) ------------------------- 15
  61. FS-455.667 (2). ---------------------7,10,17
  62. FS-455.667(5)(d) --------12,15,24,26,29,35,36
  63. FS-455.667 (9)(10)(13). ----------12,15,21,37
  64. FS-464. --------------------------------10,20
  65. FS-464.003(A)(1)(2)(3) --------------------27
  66. FS-464.018. ----------------------25,27,37,40
  67. FS-464.018(1)(l). ----------------------- AIB
  68. FS-464.018(7)(k). ----------------------- AIB
  69. FS-464.018(7)(l). ----------------------- AIB
  1. FS-464. 018(7)(m). ---------------------- AIB
  2. FS-768-13(3c-d-e)--------------------------42
  3. Rule 59S----------------------------------27
  1. Rule 59S-8.005 (1)(e)(3). -------------------- AIB
  2. Rule 59S-8.005 (1)(e)5. ---------------------- AIB
  3. Rule 59S-8.005 (1)(e)12. --------------------- AIB
  4. Rule 59S-8.005 (1)(13). ---------------------- AIB
  5. Rule 59S-8.005 (1)(e). ----------------------- AIB
  6. Rule 64B9. -------------------------------------23

 

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

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

***** AIB- Appellants Initial Brief.

 

 

CASES. PAGE NUMBER.

 

 

  1. US Supreme Court No 292 (198 US 45 ) _______________ AIB
  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 ______________ AIB
  4. Bose Yalamanchi, M.D., P.A. App 4 Dist, 669 So. 2d 1142 (1996).

     

  5. Brooks Vs the Department of Professional _____ AIB
  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. _______ AIB
  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.______________________10,11,21,23,33,35,37,38

 

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

  3. Charter Hospital, V/s Jose N Proenza Sanfiel Et al,____23-24-42 ORL-CIV-97-705.
  4.  

     

  5. Case Ref#-8 Ferrell V/s Aerican Mutual Insurance Co 361.So 2nd 408 (Fla-1978)_______ 10,18,19,20,29,39,40.41
  6. Fla. Bar V/s Cibula Case No-89-551(Fla. 25 Nov 1998)_______33
  7. DPR V/s Hyman No.417 So 2d 617 (Fla.1982)_ 39

 

 

 Table of Citations.

Answer Brief of Appellee. (ABA)

1. [ Reply to ABA- PG#-1 Prg#-1 ] Pg#-8.

 2. [ Reply to ABA-Pg#1-3 ] Pg#-10.

 3. [Reply ABA-Pg#-2 Prg#-2] Pg#-10.

 4. [ Reply to ABA-PG#-4 Prg#-1 L#-5-7 ] Pg#-13.

 5. [ Reply to ABA-Pg#-12 Prg#-4 ] Pg#-15.

 6. [ Reply to ABA-Pg#-4 Prg#-2 ] Pg#-15.

 7. [ Reply to ABA-Pg#-5 Prg#-3 ] Pg#-17.

 8. [ Reply to ABA-Pg#-6 Prg#-1 ] Pg#-17.

9. [ Reply to ABA-Pg#-6 Prg#-3 ] Pg#-18.

10. [ Reply to ABA-Pg#-7 Prg#-1 ] Pg#-14.

11. [ Reply to ABA-Pg#7 ] Pg#-19.

12. [ Reply ABA-Pg#-8 Prg#-2 ]. Pg#-21.

13. [ Reply to ABA-Pg#-8 Prg#-3 ] Pg#-21.

14. [ Reply to ABA-Pg#-9 Prg#-2 ] Pg#-22.

15. [ Reply to ABA-Pg#-9 Prg#-3 ] Pg#-23.

16. [ Reply to ABA-Pg#10 Prg#-1 ] Pg#-24.

17. [ Reply to ABA-Pg#-10 Prg#-2 ] Pg#-24.

18. [ Reply to ABA-Pg#-11 Prg#-1 ] Pg#-25.

19. [ Reply to ABA-Pg#-11 Prg#-1 ] Pg#-25.

20. [ Reply to ABA-Pg#-12 Prg#-3 ] Pg#-27.

21. [Reply to ABA-Pg#-12 Prg#-4 ] Pg#-28.

22. [ Reply to ABA-Pg#12 Prg#-5 ] Pg#-28.

23. [ Reply to ABA-Pg#-13 Prg#-8 ] Pg#-29.

24. [ Reply to ABA-Pg#-13 Prg#-7 ] Pg#-33.

 

 

PRELIMINARY STATEMENT.

 

In order not to over burden the court and with the possible risk of omission due to the non-lawyering experiences of " the taxpayer " acting as Pro-Se for " the people " this reply will include the more flagrant misrepresentations noted that have been introduced in the record of this case that could sway the courts opinion and "the taxpayer" would beg that the wisdom of the court fills in the repetitive statements encountered in "procedure ? " not as requesting prejudice towards any one party except in the protection of " the rights and values of my fellow citizens and taxpayers.

[ Reply to ABA- PG#-1 Prg-1 ]

This is an appeal to a Final Order of the Board of Nursing State of Florida under [Fs-120.57(1)(J)]. Whereas a " Taxpayer " is being retaliated upon by spurned bureaucrats of The State of Florida trough its various Agencies for seeking redress of the government and the protection of rights to " the people " by the means of related causes associated with his Nursing license which has been suspended along with other " Administrative punishments " (Rec Pg#-138 or Final Order#1 DOH-98-0145 and Rec Pg#-167 or Final order #2 DOH-98-0553 that include a $500.00 fine, payment of a statutorily prohibited Administrative cost of $986.03 (FS-120.59(6)(a)-Agency may not recover unless malice judged See 120.57(1)(J) above ) with subjugating and constitutionally challenging ( Unusual punishment, Right of industry USC Amdt VII & XIII and Fl Const Sec 2) terms the Board imposed the following terms and conditions of probation: The licensee shall submit written reports to the Probation Supervisor at the Board of Nursing office, which contain the licensee’s name, license number, and current address; the name, address, and phone number of each current employer, Whether employed as a nurse or not; and a statement by the licensee describing his employment. This report shall be submitted to the Probation Supervisor every three (3) months in a manner as directed by the Probation Supervisor. (Rec. Pg#-167 Pg#-4 Prg#-1)

 

He cannot be employed by a nurse registry, temporary nurse employment agency or home health agency. Multiple employers are prohibited. The licensee cannot be self-employed as a nurse. (Rec. Pg#-167 Pg#-5 Prg#-3)

If the licensee leaves Florida for thirty (30) days or more or ceases to practice nursing in the state, this probation shall be tolled until the licensee returns to active practice of nursing in Florida. Then the probationary period will resume. Unless this Order states otherwise, The licensee shall enroll in and successfully complete courses in legal aspects of nursing and nursing ethics. This shall be in addition to other normally required continuing education courses. (Rec. Pg#-167 Pg#-6 Prg#-2) The probation shall not be terminated until the licensee has complied with all terms of probation. The licensee shall pay all costs necessary to comply with the terms of this Order. (See 120.59 (6)(a-e inclusive)

 

The " taxpayer " is the appellant and " The State " via its agencies DOH, AHCA, DPR is the Appellee. References to the record of appeal are cited by: Record Page# and Line(s)#'s (Rec. P# L#). Initial Brief is cited as: IB Page# and Line# (IB P#L#). Answer Brief of Appellee References [ ABA-Pg#- Prg#- Line#- ] Emphasis is supplied by the " taxpayer " as to the contents on: The Answer Brief of the Appellee, The Initial Brief, The Record or Individual statutes, Cited Rules, State or Constitutional Rights and cases mentioned.

 

STATEMENT OF THE CASE.

[ Reply to ABA-Pg#1-3 ]

This case is the result of "related causes" and "the poisoned fruit" Initiated by a spurned government agent whom " the taxpayer " caused to Ire when he refused to comply with directions that were collusive, immoral and that would of aided and abetted criminal activity against The State and National coffers. Such direction also being felt to be promoting unrecoverable and injurious damage to "the public good" and its open legal case and investigation in Federal Court ( US v/s Charter Hospital Rec. Case Ref#-5).

 

On January 31st of 1997, " The State " good to the threats made by the "nameless and faceless" bureaucrat issued an Emergency Order (Rec. Pg#-1) of suspension against the taxpayer's Nursing license preventing "the Taxpayer " from being rewarded by industry in violation of State and National constitutional rights along with violations of State Statutes directing the DOH not to use related causes in the performance of its duties (FS-120.52(8)(g) and if so needed for "the public good " to do so in the less costly alternative to the affected party ( FS 455.621(3) ). Such statues and directions purposely placed there by the futuristic wisdom of legislation to protect "the people" from unrepairable damages caused by overzealous non elected officials and Agencies as noted in this case ( FS 120.54(1)(2e) FS-120.52(8)(b-g Inclusive Also see Frerrell V/s Aerican Mutual Insurance Co 361.So 2nd 408 (Fla-1978) Case Ref#-8 ).

 

[Reply ABA-Pg#-2 Prg#-2]

On April 4th of 1997 An Administrative Complaint (Rec. Pg#-16) of mirror quality to the Initial Emergency Order ( EO ) was filed against " The Taxpayer " containing as "Findings of Fact" without abiding in FS-455.621(4)-Probable cause Panel) a slew of misleading partial statements, and innuendoes that gave the Aura of wrongdoing and jurisdictional powers to the Agency over "the taxpayer" that has permeated this case to present date including other misrepresentations made to the record while "The State" either knew or should of reasonably known that those facts are or were inaccurate. ( "the taxpayer" will attempt to point the same as found within the reply to the initial brief). Ex. Rec. Pg#-1 and Pg#16 both containing charges of theft and statement of fact as to having paid for the computer.

 

Such Administrative Complaint (Rec. Pg#-16) filed two full months plus after the (EO)-Rec. Pg#-1 ( enough time for investigations as required by FS-455-621(4) but never done ) contained slanderous charges including theft, drug addiction, drunkenness, mental illness, belligerence and gross negligence of another wise not-previously recorded ineptness by "the nurse" on the performance of this highly regarded and self policing profession. The same Administrative Complaint contained statements "of fact" from the Hospital whom in accordance to the Charges by "The State" ( Rec. Ref. Case#-5 ) was a "liar and thief" themselves. Such Admin. Co. also contained statements originating from the news sources that were recognized by The Honorable Judge John Adams as being protected under " Freedom of speech " ( Rec. Ref Pg#-1 Enclosure or Pg#-14 Orlando Sentinel article Wed. 1-27-1997 ) and free of professional standards while at the same time "the tax-payer" was denied equal protection. Simply because the news media had cooperated with the hospital yet ignoring the cooperation of "the taxpayer" in identifying himself to "The State" with all his personal information and the cooperation of having voluntarily turning over his property ( US Constitution Amdt. V " Confiscation of private property without compensation") "The computer" over to such court in recognition as competent authority.

 

The Administrative Complaint included misleading and partial statements made by the Executive Director of the thrift store who's full statement was " we do not keep records of any donations or sales to any one "(Rec. S-11) even though the (EO) and Admin Co in contradictory statements acknowledges statements by the law abiding "taxpayer" that he had bought the computer and amount of purchase. (Rec. Pg#-16 Prg#-9 Prg#-13)

 

Such Admin. Co. also included statements that "the taxpayer" had allowed access to confidential information when in reality "the taxpayer" had only revealed information that was not confidential but proved that the origin of all the information contained to belong to a negligent records owner (FS-455.667(1)(9)(10)(13)) FS-455.667(5)(d).

 

This mentioned Admin. Co. also stated that " an unknown" and other " unknown " previous patients of "the records owner" i.e. Charter Hospital had been interviewed or become distraught over the alleged release of confidentiality. Surely as the record shows ( Rec. Pg#-1 Enclosure or Pg#-14 Orlando Sentinel article Wed. 1-27-1997 Rec.Pg#-16 ) the purported cooperation amongst the Hospital, the news media and the AHCA should of yielded specific facts instead of information that could be challenged in civil procedure. Furthermore, no credit is given to "the taxpayer" of "preventing" an unknown amount of patients from having their records strewn on God knows how many thrifts shops around the Nation due to the expanse of the Negligent records owner being a National conglomerate with standard operating procedures such as is known in large corporations.

The same Admin. Co.(Rec. Pg#-16) also acknowledges that the agent for the state directed "the taxpayer" to aid and abet the alleged criminal in recuperating evidence that "The State" could use for conviction.(Rec. Pg#-16 Prg#-18) In the same breath " The State" further acknowledges its " collusion = cooperation " with the alleged rapist of the states coffers in order to silence "the taxpayers" warning cry .(Rec. Pg#-16 Prg#19). Such cooperation extending to the point of violation of Statues and common sense that directs "the State" from identifying informants at the very least for a safety buffer time period of ten (10)days. ( indicating the futuristic wisdom of legislators for the protection of Good Sam's and allowing some type of conclusive evidence to be gathered).[ FS 455.621(3)(4)-Probable cause panel, FS 455.621(3)-Less Costly Alternatives, FS-455-225(10)-Protection of informants, FS-120.54(4)(a-1-2- Emergency action only that to protect public. ]

 

This Admin. Co. (Rec. Pg#-16) further was further riddled with innuendoes of lack of cooperation by "the taxpayer" when he did not drop his scheduled work two(200) hundred miles away (Miami) and give the evidence to some one that at no time indicated of the proper investigation that should of ensued but never did [ Rec. S-7, S-8]. This innuendo of lack of cooperation extended to say that it was the Agency and Charter whom initiated the contacts when in reality except for one time it was the taxpayer whom initiated the contacts and whom did respond to several " personal beeper calls " in order to keep the communication lines open i.e. cooperating.

 

[ Reply to ABA-PG#-4 Prg#-1 L#-5-7 ]

The Admin. Co. (Rec. Pg#-16) in chastiseable and unethical use of the psychiatric medium also used partial statement as to the fact that "he was a former US Marine ", " an activist" and did not take threat's lightly with his willingness to fight conveniently ignoring the rest of the same breath statement that directed the investigator to check with State Representative Irlo " Bud " Bronson and Senator Connie Mack. Indicating that he is a peace loving individual whom is willing to work trough proper legislative channels in order to bring about social changes. The admission of being an " activist and previous fighting man" should not be confused with being a "terrorist" and bombing government buildings. Furthermore no consideration of the peaceful nature of "the taxpayer" was recognized by the fact that he had completed a paramount life change of abandoning his "professional killer status as a US Marine" and dedicated his life to one of servitude to his fellow man by becoming " a professional healer or Nurse ". Ignored also was the fact that the same News article quoted " Orlando Sentinel "Wed Jan 27 1997 indicated that "this taxpayer" had effected social changes trough peaceful methods for a period of years.

 

The Admin. Co.(Rec. Pg#-16 Prg#-25 -26) continues to make mention of the fact that the Honorable Judge Adams issued Injunctive release in favor of Charter and regarding release of patient information. This was done without mentioning that the Injunction at the time was a temporary in nature and that it also was done with "the taxpayer " in absentia " or that by this time the computer had been turned over to Judge Adams voluntarily [ US Const. Amdt. V, Fla. State Const. ] and without further contacts with the media since the public good had already been served.

 

The Admin. Co. (Rec. Pg#-16 Prg#-28-29) also gave great importance as a statement of fact to the highly opinionated words of an " Agency Dependant Psychiatrist " The Director of the PRN program whom presumably was given what information the AHCA wanted him to hear and without further ado mandated the " Immediate physical and mental examination" of "the taxpayer" which indicates a mind set of the same abuse of psychiatry as seen in the despotic cruel and oppressive communist Russia. Amazingly the same opinion was not asked of this " Professional " as to regards of a record owner whom releases the same information but on a broader scale to any one that walks into a thrift shop.[FS-455.667(1)(9)(10)]

 

[ Reply to ABA-Pg#-12 Prg#-4 ]

On or about April 2nd of 1997 "The State" presented "the taxpayer" with a document package that contained Explanation of Rights, Election of rights and a Stipulation. [Rec. Pg#-27] The explanation of rights clearly and in bold letters stating " MEDIATION NOT AVAILABLE " . The enclosed stipulation enclosed was nothing more than " carte en blanche " that was found to be repugnant to a free Man and well meaning Good Sam.[FS-455.617(1)(5)] If such stipulation was accepted all of the Administrative Complaint charges and practically every right that "the taxpayer" would be entitled to would have been waived still allowing "The State" to go beyond the presented charges etc if they wished to do so if this "NON MEDIATING Ultimatum was accepted ".

 

On or About June 25th of 1997 trough strong legal objection and quoting the liberties of a "Free American with rights " the attempts of the oppressive Communistic and Nazi like request of "compelled mental examination " along with the "physically invasive examination" were shot down by The Honorable Administrative Judge Daniel M. Kilbride.[Rec. Pg#-49] [ ABA-Pg#-4 Prg#1 L#-5-7 ]

 

[ Reply to ABA-Pg#-4 Prg#-2 ]

On or about August 14th of 1997 a joint pre-hearing stipulation was entered in order to narrow down the ( 45 forty five ) paragraphs of shotgun styled allegations and charges that initially was regurgitated by the "Non Mediating Administrative Medusa ".

 

On August 20th of 1997 an Administrative hearing was scheduled and attended to by both parties "the lone taxpayer" and his Pro-Bono attorney. "The State" with it's two Tax Revenue paid attorneys, The attorney for the Fortune 500 Corporation or "alleged Tax coffers rapist" accompanied by their Vice-President of Quality control, the AHCA experienced investigator and The highly opinionated "Psychiatric Marionette " whose testimony had previously been shot down [Rec. Pg#-49] yet was still umbilically attached to the case for some unknown reason to be deflated again in front of the voice of reason and questions of professional ethics requiring at least some type of study of a subject prior to issuing "blind professional mandates" on command by its parent agency whom I'm sure rewarded him with tax revenues for his worthless and miserable excuse of " input as a care giver " [ 120.569(3) ].

 

At this Administrative Hearing the absence of the "guardians of freedom of speech" that aided "the taxpayer" get in this mess was greatly missed

[ Rec. Pg#-82] but their presence was felt by the introduction of the Switcharoo tale telling unedited Master video tapes v/s the purported " News Broadcast of January 23 of 1997 " [Rec. Exhibits #1-2] as mentioned in the pre-hearing stipulation. The presence of " the guardians of freedom of speech " was also felt by their submission of a document quoting freedom of speech that hid them from having to speak out.

 

Another piece of evidence presented was the modified version of " the taxpayers" cry for reason in the manner of an Internet Web page that closely resembled the original work of "this taxpayer" and was submitted as [Rec. Exhibit #-3 in order to attempt hanging him with his own words.

 

 

[ Reply to ABA-Pg#-5 Prg#-3 ]

On or about October 29th of 1997, The Honorable Administrative Judge Daniel M. Killbride issued his Recommended Order a product of wisdom and stiff penalties for a perceived hideous wrong that even though was felt to be impartial contained some of the essence of "tainted fruit" and the "unfiltered waters" of ignorance or naïveté from "the taxpayer" and his "Pro-Bono" counsel seen as guilty on matters pertaining to the practice of nursing completely out of the clinical field.

 

[ Reply to ABA-Pg#-6 Prg#-1 ]

On or about November 12th of 1997 the "Pro-Bono" attorney submitted exceptions on behalf of the Taxpayer and upon seeing the quality of the work of this member of The Bar the "Taxpayer" loudly thanked the attorney for his " hard work" yet inwardly fainted in despair with a rush of words that would blush the " Sailor/ Merchant of Venice " that had been quoted previously by this Attorney and that " The Lord " will certainly remind this sinner of when and if he reaches the Pearly gates. Next day the attorney was "released" and " The State" Promptly notified of this action along with the submission and initiation of action by " the taxpayer " in a Pro-Se basis. Motion to withdraw on record is noting more than the procrastinating attitude of the mentioned Pro-Bono.)

 

On the same date Nov 12th 1997 " the taxpayer" submitted (a) A Challenge to Order (b) Amended Exceptions (c)Motion for reinstatement of his Nursing license (d) Motion for Dismissal of Charges. All were submitted to the Chief Justice of Administrative hearings in accordance with The Honorable Judge D.M. Killbride along with copies to The AHCA, The DOH and Judge Killbride. [ Rec. SS-187 Pg#-49 L#-17-25 ] [Rec. SS-187 Pg#50-51 L#-18-13].

 

 

On January 7th of 1998 "the taxpayer" reminds "The State" of previous requests as to the reinstating of his Nursing license.

 

[ Reply to ABA-Pg#-6 Prg#-3 ]

On January 12th of 1998 "the taxpayer" trough efforts comparable to dentistry of large mammals discovered to his surprise that he had already been tried and convicted " en absentia " on December 11th of 1997 once again with thoughts that would blush the proverbial sailor and in a controlled rage contact was initiated with highly placed agents of "The State" and demanded an explanation as to such travesty and underhanded legal maneuvering to deny "the taxpayer" of the justice rightfully deserved under and before "The Law" [Rec. Pg#-27][FS-455.621(9)(a), FS-120.569 ] when Counsel and Pro-Se had been inquiring as to the status of the case by wire and postal services. On the same date "by miraculous coincidence" the 1st Final Order gets signed by the agent of "The State" (Chairman of BON W.Edwards)[Rec. Pg#-138]

 

[ Reply to ABA-Pg#-7 Prg#-1 ]

On January 22nd of 1998 letter from an agent of "The State" The office of Atty. Gen. acknowledges " the mistake " and another violation of "the taxpayer" constitutional rights of double jeopardy are waved by the " arranging" of a second hearing before The Board of Nursing without request of "the taxpayer" and only by the will of "The State". [FS-120.59][US Const. [Ferrell v/s AMI Co Ref. Case #8 ] [ Fla. State Const.]

 

On January 23 1998 Certified Letter from AHCA Informs " the taxpayer" that Second hearing will take place at Panama City on February 12-13 1998 by the letters content such hearing will be " an Informal hearing" [ ABA-Pg#-7 Prg#-1 ]. However as noted on the Record a "Formal Hearing" was held instead ignoring "the taxpayer" objection of not being prepared for such " formal hearing ". [ FS-120.80 (4)(b) Professional Regulation]

 

On February 2nd of 1998 "the taxpayer" is served with the First Final Order.[Rec. Pg#-138].

 

[ Reply to ABA-Pg#7 ]

On February 12th of 1998 "the Taxpayer" reports as ordered to Panama City at 0810 AM being the second person reporting in and discovers that his case is not on the Agenda as requested informs the BON of this fact and awaits his hearing such wait extended until approximately 500 PM being the last person to be called and after some 40 cases are heard before him of those 40 cases 31 person were no shows yet "the taxpayer" was not called during a break "the "tax payer" asked of the reason being bypassed and the response was " at the pleasure of the Board" [capriciousness] finally "The State" represented by the BON holds a "Formal Hearing" [FS-120.80(4)(b)] against "the taxpayer" calling the Certified letter from the office of a Director of Department as a mere "mistake" ignores "the taxpayer" objection of lack of preparation and his unwillingness to give up any rights if he participates on such " Formal Hearing " [ Rec. SS-187 Pg#10 L#-18-24] by Vacating the "First Final Order" by virtue of Unknown Authority and proceeds with the hearing issuing a Second Final Order. [ Ferrell V/s AMI Co. Case Ref#-8 ] [ FS-120.52(7)-Final Orders ] [FS-120.569 -Right of Appeal].

 

On May 4th of 1998 The Chairman of the BON signs the Second Final Order.[Rec. Pg#-167].

 

On May 26th "the taxpayer" is served with the Second Final Order. .[Rec. Pg#-167] the same in violation of [Farrell V/s AMI Co. Case Ref#-8] [FS-120.569- Right to Appeal] [FS-120.52(7)-Final Orders].

 

On June 25th of 1998 The 5th DCA acknowledges receipt of notice of Appeal on instant case.

 

On December 10th of 1998 "the taxpayer" submits his Initial Brief.

 

On January 12th of 1999 "The State" submits the response to Initial brief.

 

On January 20th of 1999 "the Taxpayer" Motions The 5th DCA for assignment of Amicus Curiae.

 

On January xxxx of 1999 "The State" responds to Motion of Amicus Curiae.

 

On February 26th of 1999 ( Two Full Calendar years ) from initial date of the Emergency Order "the taxpayer" submits reply to response by "The State".

 

 

STATEMENT OF FACTS.

In order not to burden the court and with the possible risk of omission due to the non-lawyering experiences of " the taxpayer " acting as Pro-Se this " statement of facts" reply will include the more flagrant misrepresentations noted that have been introduced by "The State" on its Response and that could sway the courts opinion regarding the present case.

 

[ Reply ABA-Pg#-8 Prg#-2 ].

On an unknown date Jose N Proenza Sanfiel a law abiding citizen of the USA and resident of The Great State of Florida while in the pursuit of philanthropic happiness legally purchased a computer on a second hand shop (ORCA). Upon examination of the computer hard drive "the taxpayer" discovered information that when viewed and upon recollection of news reports indicated that such information belonged to a local Psychiatric Hospital ( Charter Hospital Orlando South ) this hospital as recollected by "the taxpayer" was being investigated and prosecuted by the Federal Government in a court of law for the "raping of the state and Nation coffers trough the Medicaid / Medicare programs.[Case Ref#-5 US v/s Charter Hospital] Such computer hard drive contained complete financial records of Administrative nature regarding the Hospital and also contained databases of psychiatric patients with pertinent information of such patients.

 

[ Reply to ABA-Pg#-8 Prg#-3 ]

This law abiding "tax payer" considered this information and realized that this was "evidence" in the above case that could assist "The State" to prove its case towards the recuperation of "revenue" and that the private confidential information was indeed a violation of privacy from a "records owner" whom by statutes is required to protect such highly regarded information.[FS-455.667(1)(9)(10)]

 

Moved by moral and ethical standards the law abiding "taxpayer" proceeded in a prudent manner to contact law enforcement personnel " to take a bite out of crime". He made "reasonable efforts" for several days in reporting the finding of this evidence at the local level and was directed from one agency to another up to the Federal Level. Upon reaching such level he was directed to go back to the local level to begin what seemed an endless circle of statements such as "it is not our jurisdiction try such or such agency" and " We do not discuss ongoing investigations etc..etc..[Rec. Pg#-110 Prg#-4 Prg#-8][Rec. Pg#-198 Exhibit #-P-3]

 

Appraising the situation and considering the great harm to "the public good" that could be caused in delay of "discovery" this law abiding citizen turned to local and reputable Media contacts in an effort to peacefully seek redress of "The State" for failure to secure evidence for "the public good".

[ Reply to ABA-Pg#-9 Prg#-2 ]

The News Media did its job of alerting the public [Rec. Pg#-16 Prg#-18-19] [Rec. Pg#-1 Prg#-18-19 ] and within two hours "the taxpayer" was able to contact a "State Agent" to whom the law abiding citizen trusted with his full Identity and other particulars of a personal nature such as his professional status along with similar information regarding his spouse and the reasons of why he was taking the present course of action without fear of the repercussion that this would have on his personal and professional life since he was acting without malice as a "Good Sam" [FS-455.564(4)] and performing the duties that is expected of all good citizens of this nation.[ Fla. State Const.][FS-455-225(10)].

 

The above mentioned (and to date) "faceless or nameless" bureaucrat proceeded to direct this law abiding citizen to aid and abet criminal behavior by means of the statement " give the computer back to Charter Hospital" upon hearing that statement the incredulous "taxpayer" refused such direction. Further direction to give the computer to her so that she could give it to Charter Hospital was also refused as ethically inappropriate and morally repugnant. [Rec. Pg#-1 Prg#-18] The "Government Agent" whom at this time knew the law abiding to be a Registered Nurse and governed by its jurisdictional powers proceeded to intimidate or threaten the taxpayer with the suspension of his nursing license. Knowing that he had a right to refuse the carrying out of unsafe, illegal or immoral direction by any one. "The taxpayer" refused such directions and terminated the communication that he had initiated.

 

"The taxpayer" has been the initiator of all initial contacts with "The State" and did turn over voluntarily "the evidence" to a competent guardian such being The Honorable Judge Adams of Orlando.[Ref Case #-7 Charter v/s Jose et al, ].

[ Reply to ABA-Pg#-9 Prg#-3 ]

"The taxpayer" initiated contact with "the representative of Charter hospital " the records owner " and under active court trial for " Fraud of Revenue" [ USA v/s Charter Ref. Case#-5 ]. The contact proved to be the failure that could be expected of some one having been caught with its pants down! What words can " The Vice President of Quality Control " of a Fortune 500 Company say that might not be prejudiced in colour? [ Rec. Volume 1 or transcript of Admin. Hearing][Rec.Pg#-16 Prg#-24]. This contact was on the same day that a Second contact was made by "the taxpayer" by responding to a "beeper call" to his personal number " personal information given to "The State" voluntarily by the informant. And violated per FS-455.225(10) AIB- P#-26 pg#-4.

 

[ Reply to ABA-Pg#10 Prg#-1 ]

"The taxpayer" fails to see what is "The States" call of foul regarding The Honorable Judge Adams decision that when viewed denotes lack of harm by giving "the taxpayer" back his computer and ordered each party to pay all cost. Further more by order of the same court Charter Hospital was ordered to provide copy of the evidenced backup of hard drive contents to the Government Counsel.[Ref Case#-7 Charter v/s Jose] This call of foul being more than repugnant to "The Good Sam" when innuendoes of extortion are misrepresented as refusing to stop his scheduled work, travel extensively and incur other incidental costs so that I might return the "fumble of a dumb criminal " then be compensated $20.00 Dollars as paid at the thrift Shop.

[ Reply to ABA-Pg#-10 Prg#-2 ]

The violations of Statutes that "the taxpayer" is being charged with trough "related causes" beyond the scope intended by legislation and offensive as noted otherwise herein.[FS-455.624]

 

The Practice of Nursing is based on a contractual nature, not 24 hours per day to unknown patients and to be legally responsible beyond responsibility as intended on the Malpractice Act.[FS-95.11(4)(a)(1)(b)].

 

The courts review of the purported "strongest evidence" by "the State" even on a frame by frame basis will reveal that "The Good Sam" indeed did show pity and protected the public good in a reasonable and prudent manner and also as directed by FS. 455.667(d)"data may be used in abstract and statistical purpose.

 

For "The State" to charge a "Good Sam" with " Immediate danger to the health, safety and welfare of the public by public exposure of confidential patient information while identifying a violation of law and then call "the fumbling criminals" release to a Thrift Shop " Inadvertently " violates every intent of responsibility in civil, moral or ethical law.

  

SUMMARY OF ARGUMENT.

 

[ Reply to ABA-Pg#-11 Prg#-1 ]

Per Statute the Departments power to restrict the Practice of Nursing is limited to such powers as granted by legislation period [ FS 455.624- Grounds for discipline., FS-455.621(10)(11)(12)(a)(c)-Protection of Informants.], The other powers granted are under [ FS 464.018- Disciplinary Actions] but not beyond.

[ Reply to ABA-Pg#-11 Prg#-1 ]

The issue of an E.O. requires " The State" follow certain procedures not followed per such powers direction.[ FS 455.225(4) No Probable cause panel rule compliance, FS 120.54(4)(a-3) Advertise in Fla. Weekly and Least costly alternative also 455.621(4)., FS-120-54(4)(a-2)- Only action to protect Public., 455.225 (10)- Protection of informants ].

 

Taxpayer did file CHALO on Date 12 Nov 1997 to correct address. The Taxpayer's representation by counsel is noted due to Pro-Bono work that came to an end on Date Nov 12 1997 [ Rec. Pg#-118 Pro-Se ] and Without revealing Client / Attorney relationship further than stating that such counsel was not "appropiate" or "beneficial" for the desired directions of the case specially after submission of poems to the court and documents as exceptions that lacked in procedural correctness as noted by the BON and opposing counsel Reply brief and the Transcripts.[Rec. Tr#-2 Pg#36 L#13-21, Pg#-37 L#-13-15, Pg#38 L#1-8 Pg#-51 L#-3-10 ] Inclusive the 3 (three) month motion to withdraw filed by the procrastinating counsel.

 

The State is indeed repressing the right of industry, the rights of freedom of speech and redress to the government for the protection of the coffers of "The People" and right of privacy.

 

What laws did the Good Sam Violated when he contacted law enforcement in the reporting of evidence in ongoing investigation. Such reporting from the local to federal levels. Is this really "taking a bite out of crime" ?

 

Evidence will reveal that the information "divulged" to news media only contained Identification of Originator i.e. Charter Hospital further viewing of the evidence will reveal that "Patient information" is referenced as "Raw Generic data" belonging to no one in particular.[FS-455.667 (5)(d).

 

The care expressed by the Good Sam in the protection of the patient information can be appreciated in the evidence it self to be greater than the initial records owner.

 

Stress is placed on the States Constitution Section IV right to exonerate if information is correct in any civil suit.

 

[ Reply to ABA-Pg#-12 Prg#-3 ]

The Good Sam is being asked to bear greater responsibility for the privacy of patients of the world than those of the actual records owners and the crime fighters of the state simply because "this pigeon" did not pecked on the appropiate "jurisdictional pigeonhole." [ DOH Ap. Rep. ] [ Rec. P-3 ] [Rec. Pg#-1 ] [Rec-Pg#- ]. [Rec. S-6, S-7, S-8.][ABA-Pg#-12 Prg#-6 ]

 

The State is showing capriciousness by Charging this Good Sam trough related causes ( privacy is inherent on all professional practices and the precedence set by this court would allow every regulated profession to be subjected to this abuse of power) while ignoring statutory direction to the records owner and the suspected rapist of "common revenue".

 

Further insult to injury regarding privacy is shown when "the state" also disregards statutory mandates FS 455.225(10) violating the Good Sam's right of animosity and also privilege of probable cause panel FS-455.621(4).

 

The State's suspension of Nursing License of the taxpayer targeted his purse and not his mouth this being the offensive instrument and for such existing Gag orders etc. Violation of FS-120.54(4)(a-2)

 

The States suspension of the Nursing License targeted the purse even though the alleged violation did not take place at work or trough work related exposure neither trough the "Act of Practicing nursing" in any manner FS-59-S, FS-464-003 (1)(2)(3) sufficient to fill the need of privity or Legal responsibility as noted in ( Malpractice) law FS. 95.(1)(b) 11(4) [ ABA-Page#-12 Prg#-3 ]also not sufficient under FS-455.624 or FS-464-018., but rather on " Ethical" Reasons as to which the Good Sam is a manifestation of.

 

[Reply to ABA-Pg#-12 Prg#-4 ]

The State's denial of Mediating abilities is nothing more that a Clintonian argument as to the meaning of the word "IS" . [ Rec. Pg#-27 ] The words in bold lettering " No Mediation available" clearly indicate that mediation IS NOT available. Further error as to willingness of mediation is found on the words of the state when it say's ( His attorney sounded like if he wanted to settle the matter..) And the requests for reinstatement of license submitted.

[ Reply to ABA-Pg#12 Prg#-5 ]

GREAT ERROR is noted on "the state" directing to the court as to the protection of Identity of informants the correct Statute and protection claimed are under FS-455.225(10) which is very specific. The record clearly shows that this is another one of " the States" so called " Harmless errors and encroachment towards "rights of free people ".

 

The tax payer has been silenced trough his purse and the limits of his voice by hiring of counsel are a form of restriction of speech and industry that his case will show do fall under capricious.

 

Charges of theft should of never been even considered but still the taxpayer wore the charge to his otherwise unspoiled name easily avoided if Probable cause panel statutorily obligations had been followed FS 455-621(4). (Harm is already done and charge was dropped this note included to show capriciousness and use of related causes by the state).

 

[ Reply to ABA-Pg#-13 Prg#-8 ]

The evidence is not clear and convincing by any means to where at best the state has introduced master Video tapes of which partial broadcasts were made to the public alerting them of negligent dereliction to duty by public officials in the protection of its coffers and evidence on an ongoing investigation well in compliance with FS-455-667(5)(d).

 

Furthermore contrary to "The State" reply erroneous representation [ Rep.] the state two witnesses did testify that no information was released. And the alleged patient is an unknown v/s information released to them by "the taxpayer" [ Rec. Vol. I Tr. Pg#-27 L#-7-21, Pg#-35 L#-25 Pg#36 L#-1-5. ]

 

In a classic Kettle calling the stove black "The Good Sam" is being accused of the crime that he reported. !

 

The State referring to words of the court as truisms [ ABA-Pg#-15 Prg#-1 L#-1-2 ] demeans the wisdom of the 1st DCA applied though in uttering such notation as a note in the referred case regarding the release of information.

 

The BON vacated an Order but quotes no Authority and none is found as to the ability of a Board to Vacate Orders Filed as final Orders.[ Case Ref#-8 Ferrell v/s AMI Co.- Courts Vacate Quasi-Judicial Entities do not ] However statutes do say that appeals are appropiate then after filing of orders.[ 1st Final Order Rec. Pg#-138 ]

The Taxpayer has also challenged the fact that he was mislead to be present at a BON formal hearing when "an informal hearing summons" [Rec. S-2 ]was sent in front of the BON not as implied by "the State's counsel" that such letter implies the Administrative hearing.

 

Full and fair hearing are yet to be established due to "the Taxpayer not wanting to cloud the issues on appeal regarding such hearing and its proceedings where "The Nurse" even though being told to be there was not placed on the agenda then being the second person present on that room was heard only after all other cases present (..xxx# ) and (...xx#) of cases not even present as told " for the pleasure of the board " . The Record clearly shows that the Nurse was Overwhelmed and repeatedly told that the board would continue with or without the nurses input.

 

Terms and conditions are prohibitive [ FS-120.59(6)(a)-Not entitled to recover based on FS-120.57(1) as case is based [Rec-138 Pg#1- Prg#1 L#-2 ] [ Rec. Pg#167 Pg#-1 Prg#-1 L#-2 ] and do not address the nurses professional responsibility but rather the control and management of the nurses ability for industry and incumberment of government intervention even beyond the employment outside of the practice of such profession by way of "reports to the state" as a common criminal for five (5) years no less.

 

The BON may impose statutory fines etc with limitations and FS 120.59(6)(a) clearly indicates that proceedings that are initiated under this law do not have the ability to recuperate.! Unless Malice is committed and judged upon.

 

The issuance of the final order beyond the statutorily granted powers "is not harmless error" it is one of the many "harmless errors", "failure to contact for appearance" , "Informal v/s Formal hearings", "Wrong department within a department", lack of probable cause panel,

"not bound to protect informants", "cooperation with alleged criminal element", etc.. etc.. The court has the power to and may make this "harmless errors" as "Reversible errors" and such power is requested here in.

 

The taxpayer has been harmed extremely by all of this "harmless errors" and it is for that reason that he presents his case to this court today in order to find relief from this hinneous charges and for the restoration of my good name and fortune.

  

ARGUMENT SECTION

 

ARGUMENT I

 

The Protection of patient information is the secondary head of this two headed monster. In the weight of evidence and of information released if any by the nurse it should be noted that greater care was shown by this Good Samaritan than those commanded to protect it.

 

The motive of this crime is one of caring and the criminal intent nil. It is a sad day indeed when a Good Samaritan recuperates the fumble of a careless suspected criminal fails in several good faith attempts to interest the law enforcement community and when finally is able to get assistance he is told to aid and abet the criminal by giving back the evidence. Failure to do so then is considered sufficient reason to charge the Good Samaritan with the crime of the criminal that he was reporting.

 

 

Confidentiality laws that apply in Nursing are directed to the health care provider specifically for the performance of their duties and malpractice laws regarding legal responsibility Exist for that purpose along with licensure. Licensing is specifically an action for industry within specific areas of labor. Privacy is not only specific to nursing but to every licensed professional of our Great State in this manner "Privacy" becomes vague and void in statutes not allowing for a reasonable person to act in the reporting of crimes.

 

The cry of "thieve" was not uttered in vain per US and State constitution and the producing of evidence regardless of sensitivity is protected. The Nurse was not chitchatting about a patients condition on lunch break it was acting as a very concerned citizen in the interest of the public good. The nurse did indeed contacted responsible law enforcement up and down the local to federal levels. The nurse also did not contact the paparazzi he contacted responsible news media known to alert the public of dangers. If the Nurse is held accountable being so separated from those patients and unknown others in second hand shop bins.! Why is it then that the records owner is not coming to bear? [Rec. S-7, S-8]

In ABA-Pg#-18 Prg#-2 L#-3-8 Plain language is written and intent is interpretation denoting a vague status in law that overreaches nursing practice out of the Clinical area that is indeed intended to be regulated by "the DOH, BON, AHCA". Acknowledging the fact that something is wrong does not implies that a person takes blame for such action specially if his first reaction is to contact law enforcement. [ Rec. P-3 - Jose's Web Page]. [ Rec. Tr-Vol-I Pg#- xxx L#- xxx.

 

The evidence and the testimony of the state witnesses come to show that no information was carelessly accessed nor released. [ Rec. Vol. I Tr. Pg#-27 L#-7-21, Pg#-35 L#-25 Pg#36 L#-1-5. ]

 

The states reference to "the Fla. Bar v. Cibula Case No. 89-551 (Fla. Nov 25 ,1998) is comparison of Apples to Bananas when we note that the attorney is practicing his profession as a litigant and the nurse in this case is not in performance of clinical practice or legally bounded by any type of privity or consensual agreement for care.

 

The State wishes the court to ignore the fact that the nurse acted reasonably by contacting "The Law", and by further prudent action of contacting multiple levels of law enforcement not just one. [Rec.#-110 Pg#4 Prg#-8 ].

 

The state also wants the court to ignore the wrong doing of Charter "Fraud" and negligence in "record owners responsibilities".

 

The state wants the court to ignore direction from a government official to the nurse in the aiding and abetting of criminal activity by giving evidence to the subject of an active criminal investigation. [ US v/s Charter Ref. Case#-5 ][Rec. Pg#-16 Admin Co. Prg#-18.]

 

[ Reply to ABA-Pg#-13 Prg#-7 ]

The State wants the court to wave requirements of posting on the Fla. Admin Wkly per FS 120.54(4)(a)3 this is event though the direction is not by request but by mandate.

 

The nurse did challenged the E.O. as soon as aware subjected letter package was sent to Admin Hearing Div. "Chief Atty.". [ Tr. Pg#-xx L#-xx ]

 

 

ARGUMENT II

I'm my brothers keeper but not his innkeeper. In any relationship of legal responsibility a bond must be established as per that responsibility.

 

Providence placed on the hands of a Good Sam a test of ethical argument by providing him with previous knowledge of an active criminal investigation then evidence on that investigation and further evidence of negligent "record keeping" in violation of privacy to hundreds of medical records.

 

The only prudent action to "take a bite out of crime" as often reminded is to report criminal activity and so was done by the Good Sam. When this prudent action yielded more of yelps that bark the only other alternative left was for the Good Sam was to alert the Public until appropiate assistance was rendered. The clamor raised by the Good Sam attracted attention of a "government agent" that directed the Good Sam to the doors of the criminal and begging his pardon for having stumbled upon evidence of his crime and may he kindly take it back.! The "government agent" further offered itself and services to be the implement of such return of evidence to "alleged criminal element" [ Rec.#-1 Pg#- Prg#18] Rec.#-16 Pg#- Prg#-18]

 

The moral and Ethical integrity of the Good Sam were tested further by providence when ignoring the threat of harm to his purse he refused to follow "poor direction" and the willingness to walk the extra mile in the pursuit of "sound judgment" for the protection of the public good.

 

The pity and love shown by The Good Sam certainly was beyond that of prudent men when he shouldered the responsibility of the public good without expecting reward for his deed and even attacks to his purse. [Rec#-1 Emergency Suspension ].

 

When the wearied Good Sam finally comes to the Inn dragging the "victim of foul play" it is not proper to blame him for the injuries of the victim specially when viewed that the Good Sam even not perfect did show prudence in his actions.

 

At least some privity is needed for a legal responsibility in any case The Good Sam can not be castigated simply for being good lacking malicious intent. [ Fla. State Const.- Exonerate if truth spoken ] [ FS- 455.621(11)- Privilege against civil liability i.e. fines etc. - No Civil penalties Ref Case#-5 USA v/s Charter. ]

 

 

ARGUMENT III

The State is trying to argue that the nurse shared private patient information with the media when review of the evidence will reveal that only non correlated material is revealed with the slightest of information to properly identify contents and ownership and well within allowance of FS-455.667(5)(d)- Raw genetic data.]

 

The state has sufficient evidence to identify the actual records owner yet excuses them from responsibility due to inadvertent release as if such name for negligence is proper See[ Rec-S-1 ]. Instead the attack is set on a standerby that says oops you dropped something.!!( " Holding the bag " ).

 

The Defendant did raise the question of being able to question the news media at time of the trial and did not sit on his hands [Ref. CHALO Nov 12th 1997 Rec. [ Rec. SS-187 Pg#-49 L#-17-25 ] [Rec. SS-187 Pg#50-51 L#-18-13]. Hearsay is claimed and as should it stand specially when counsel further questions the actual existence of a " Patient" by reference to the transcript of hearing. [ Rec. Vol. I Tr. Pg#-27 L#-7-21, Pg#-35 L#-25 Pg#36 L#-1-5. ]

 

The State counsel misleads the court in quote of Mrs. Everett and Mr. Ricci receiving information regarding the patients See [ABA-Pg#25 Prg#-2 ] rather than as stated on the record they deny the divulgence of any confidential patient information according to their respective knowledge as "Vice President of Quality Control" of a Fortune 500 Company and the 4 year experienced investigator of the Department.

 

ARGUMENT IV

The rules of discovery in its basic component say that if you are to present evidence and discuss it with the other party that such evidence will be made available to the other party. The joint stipulation indicated this to be the intent regularly expected. The divergence of procedure of replacing evidence other than what was indicated constitutes sufficient error to note. Further the introduction of NEW Evidence under the premise of old evidence is not too kosher should we say.

I do not Imply I state and indicate that the switching of the tapes was done of course there was no objection " The news cast Tapes since the nurse knew that that it had reasonably complied with FS-455.667(5)(d) -Raw generic data. [Rec. Pre-Hear Stip. Evidence to be introduced ]

 

ARGUMENT V

The charge of capricious behavior is more than adequate when the facts speak for them selves as follows.

 

A violation of Nurse Practice is being levied against an Ethical violation. So much this is so that an Emergency Order was drawn when support for actions was not found granted within FS 455.624 or FS-464-018. Giving the authority of specific punishments for specific laws. [ FS-120.54 (2)(e), FS-455.227 ]

 

The Nurse was indeed acting as a "Good Sam and law abiding citizen" by reporting evidence of two crimes one of which has never been mentioned by "The State" that is fraud against the coffers of the state. [ USA v/s Charter Ref Case#-5]

 

The fact that "the State" has acted capriciously is noted when only the far away and providence mandated temporary keeper of the records is being charged while the statutory obligated records owner FS-455.667(1)(9)(10) is declared to have "proper safeguards in place" contrarily to the 2O Megabytes of information contained on the computer and on the shelves of a thrift shop. [ Rec. S-9 ].

 

Capriciousness is noted when "the State" fails to follow mandate and protect the privacy of informants to the state as to when within 24 hours "The State" released the complete information it had on "the informant i.e. Good Sam, taxpayer" FS 455.225 (10) " The complaint and all the information obtained pursuant to the investigation by the department are confidential and exempt from FS-119.07 (1) until 10 days after probable cause has been found to exist by the probable cause panel or by the Dept., or until the regulated professional or subject of the investigation waives privilege of confidentiality". [ Rec. Pg#-1 Prg#19- (EO) & Rec. Pg#-16 Prg#-19- Admin. Co.]

 

 

Capriciousness is demonstrated when "The State" insists that "the law abiding citizen" aid and abet an accused fraudulent entity in recuperating evidence of an ongoing investigation and court proceedings against itself USA v. Charter Hospital REF. CASE #-5,. [ Rec. Pg#-1 Prg#18 ].

 

Capriciousness is demonstrated by "the state" when it wishes to call itself one entity or another for its convenience evidenced by the initial case Numbers found to be both AHCA whom initiated action and DOH numbers that indicated later involvement and finally a change of party on the 11th hour to ignore its duty in charging the hospital yet by another mouth of "the Medusa Head" the non "privity" Good Sam can be charged. [ ABA-Pg#-27 Prg#-2 & ABA-Pg#-28 Prg-1 ].

 

ARGUMENT VI

It is the duty of the Department by Statute to offer at proper intervals the licensee the ability to get his license back.

 

Significant change was noted when the Judge declared no need for Psych and Physical Evaluation also The voluntary turning over of evidence to court protection.

 

The gentle use of words [ ABA-Pg#-29 Prg-1 L#-11-17 ] when requesting his license and direction to act are not casual words they are the specific request for a persons livelihood and the manner to achieve that goal yet "The State" refers to them as casual ignoring several of such " Casual" and other more "official requests".[ Rec. Pg#-64 ] [ Rec. SS-187 Pg#-49 L#-17-25 ] [Rec. SS-187 Pg#50-51 L#-18-13].

 

Statutes requiring time limits under certain rules have been implemented for the swift projection of justice [ ABA-Pg#-30 Prg#-1 L#5-9 ] and the violation of this regardless of holidays which the courts have special calendars of allowance "The State" is willing to charge "the taxpayer" for a violation of statute yet when itself violates one it pleads a mere six days..forgetting that in such time God created the world and there are not many just a mere six days pregnant..!! Certainly the legislature did not have in mind that the least costly alternative in an Emergency order would turn to at present 2 year "affecting interested parties".

 

The call for harmless error can not be further granted when we see the issuance of a Second Final order that violates the previous Statute by a mere six (6) MONTHS that this court is requested to consider as "reversible error" when noting lack of authority to vacate per [ Ref Case#-8 Ferrel v/s AMI Co. ]. [ABA-Page#-30 Prg#-1 L#-7 ] and mention of DPR v/s Hyman 417 So 2d 617 (Fla-1982) as timely is improperly quoted since Hyman was out of jurisdiction on military assignment and protected by the serviceman acts until return to within jurisdiction of the DPR.

Fairness and correctness of this action can be noted as to the vacating and issuance of a second order so that legal maneuvering could prevent the nurse from exercising his rights of appeal or inherent civil rights by statehood residency and US citizenship.

 

 

ARGUMENT VII

 

Sections FS-120.52 (8)(a)-(g) are self explanatory.

 

Laws that the Dept can enforce as provided by legislature are by statute FS 455.624- Grounds for discipline,. and FS-464-018- "Penalties".

 

The "settled principle of law" introduced by the State indicates the administrative agency's construction of law is fair however it is only to the practice of that profession. The case clearly shows that "The Nurse" was not nursing. The construction and related causes are but ethical in question while acting outside of the profession. Privacy is inherent to all professions any and all licensed regulated professionals throughout the State would be affected in the reporting of crime and their governing agencies to use "this catch all professional related cause called Privacy"

This "settled principle of law" is clearly unreasonable, statutorily vague as to the actions of reasonable persons and does conflict with the State Constitution and civil rights as mentioned here in.

 

The order to vacate final orders at will have not been granted to the Agency [ Farrell V/s AMI Co. Ref Case#-8 ] and the right of appeal statutorily is set[ FS-120.569]. The arranging of a Second Hearing on the same cause in front of the same individuals, under protest for "misled" regarding the proceedings formal or informal status that yielding a poor defense. Can be called anything but reasonable.

ARGUMENT VIII

The argument of double jeopardy is old and recognized on the constitutional agenda both republic and state. What is the meaning of the words " FINAL ORDER" and what more finality than being filed with the agency's clerk?

 

The order to vacate final orders at will have not been granted to the Agency [ Ferrell v/s AMI Co. Ref Case #-8 ] and the right of appeal statutorily is set [FS-120.569 ]. The arranging of a Second Hearing on the same cause in front of the same individuals, under protest for "misled" regarding the proceedings formal or informal status that yielding a poor defense. Can not be called reasonable.

 

The board clearly has issued and filed two Final Orders on the same cause an option not granted by legislation to "Quasi-Judicial bodies " that draw their essence and authority from legislature".

 

It is fair to ask a court to decide on one case once and render judgment. It must be a curse for the same court to decide and be impartial on a case that it has already heard and devoted all its wisdom on the previous attempt at justice. See words of chairman to the board [ Rec. SS-187 Pg#-4 L#-1-20- "not interested heard it all before" ]

 

By granting this the court will be allowing for any quasi Judicial agency to bring a case back and back with Vacating of orders that would take legislated law on a vacation.! Also will make it in direct conflict with the delivery of justice throughout the State.

 

The Opportunity to be heard at the Board meeting fails to be accurate in light of the "mistakes" that "The State" made as to formality and preparation for a "fair" hearing the same being done under protest. The unfairness of the hearing can be noted also when the Board acted as it did on the "Agendizing of the hearing" [ Rec. SS-187-Pg#-26 L#-15-25 &Pg#-27L#1-4] .

 

CONCLUSION

 

The matter in front of this court is one of Ethical Principles and the actions of a Good Sam that reported a crime [ FS-768.13 (3-c-d-e inclusive). The Good Sam acted without malice and was acting towards the public good. [FL State Const. IV. , FS-455.621 (11)(12a) The Good Sam acted in good judgment when he contacted law enforcement further exercised good judgement was shown when he continued for several days to follow the directions to "call some one else". When the "call someone else " became a loop the Good Sam exercised good judgment and contacted those that were being affected "the people" so that peaceful redress might be sought. The Good Sam acted in good judgment when he contacted responsible news outlets and not "paparazzi". The good Sam showed good judgment when he required that privacy be protected at all times the review of the evidence demonstrates this in plain language of the law ( Fla. State Const. IV exonerated for truth) and the only information permitted was the identification of criminal and victim.

 

This court is being asked to choose between a Good Sam empowered by providence against a " fumbling criminal" and a "bureaucratic hive" that was exited by a spurned drone to a frenzy. This frenzy pitted the statements of a otherwise good standing Nurse and law abiding citizen against those of a "prosecuted thief and liar". The frenzy further yielded the violation of protection of information by identification of the good Sam to the offending party i.e. Charter Hospital [Case Ref #-7 Charter V/s Jose et al.]

 

The good Sam is being asked to bear the burden of the world with him for actions that specifically require special knowledge and training i.e. along with proper licensing and contractual agreements for the reward of industry and services. Privity being the basis for any legal requirements of liability. The Ethical interpretations of privacy that permeate to other fields can not be granted solely to one agency to enforce trough related causes. The construction of the law by an agency in this case does not apply and has gone beyond reason challenging rights of constitutional decree. [ State Const. Sect.-IV - Exonerated if truth published ] [FS-120.60(6)- EO][FS-120.54(4)(1)(2). [FS-455.621 (11) (12a)- Privilege v/s civil liability].

 

History shall view the decision of this court as wisdom in differentiation of Providence and earthly wisdom.

 

It is hereby requested that this court brings this persecution of "the Good Sam " to a halt declaring the actions of The State inappropriate and that this appeal be granted Vacating this " Final orders " created by the runaway quasi-judicial entity so that I may pursue life happiness and stability of purse trough the reward of industry as when interrupted to do my civic duty and good deed for "the public good".

 

 

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. Ronda L Bryan DOH Clerk 2020 Capital Circle Southeast Tallahassee FL 32399-3251

 This day __26th __Month of February__in the year of __1999____ A.D.

 

___________________________________________

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

 

Certificate of compliance.

 

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

 


Webmaster's Comments.

I did had to ask the court for allowance in acceptance of a longer than normal Reply Brief and of course after I sent the Reply I realized that there were some "Scriber Error's" that I sure hope "The Court ". Does not hold too harshly against me. Part of the Pro-Se "experience" I guess.?

Let me know what you think .! Do you believe that I made a good attempt at defending our constitutional rights.?

Better yet let others know and become active I need all the help that I can get.!

Thanks Jose.

  This is the part that shows you care a little extra. Please take the time and go to some of these areas and let them know how you feel, and what they can do to help. Thanks so much. Also, contact any other person you wish. It is a free country still. SPECIALLY in my place!!

E-Mail Address for Nursing Organizations

Email Address for US Senate………………

E-Mail Address for US House of Representatives

 

Is a BEAR of a job but if you like you can also reach the whole Nation trough the air ways via Radio and TV Links

 

We the people can make changes.!!

And if you E-Mail this Journalists will help us all.

 

 

 


************* NOTE OF INTEREST *********************

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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.Contacting Jose via E-mail..Mailto:onenurse@noangle.com

Contacting Judy via E-mail. Mailto:quietgal@noangle.com

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