Petition for A Writ of Certiorari — Winn v. Florida State Board of Nursing

Supreme Court brief1973

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| FILED

SUPREME COURT, U. S. JUL 20 1973

Bu The — | micuner nova, se. crenx

Supreme Court of the Bunited States

OcroBer TERM, 1973

No. 73- 146

BEVERLY JANE WINN,

Petitioner,

-v-

FLORIDA STATE BOARD OF NURSING,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL,

FIRST, DISTRICT OF FLORIDA

j STEPHEN H. DAVIS P. DONALD DeHOFF

802 Barnett Bank Building and 802 Barnett Bank Building

Jacksonville, Florida 32202 Jacksonville, Florida 32202

Attorneys for Petitioner

Moron anhs tte Ubinas bo

Page

Jurisdiction 1

Statute Involved 2

Question Presented . 2

Statement of the Case 2

Reasons for Granting of Writ 3

Conclusion 14

Certificate of Service 16

CASES CITED

SUPREME COURT OF THE UNITED STATES

Coates, et al. v. City of Cincinnati, 1971, 402 U.S. 611,

91 S.Ct. 1686, 29 L.ed 2, 98

Cramp, Jr. v. Board of Public Instruction of Orange

County, Fla. 1961, 368 U.S. 278, 82 S.Ct. 275, 7

L.ed 2, 285

Giaccio v. State of Pennsylvania, 1966, 382 U.S. 399, 86

S.Ct. 518, 15 L.ed. 2, 447 :

Gooding v. Wilson, 1972, 405 U.S. 518, 31 Led 2 408,

92 S.Ct. 1103 .....

Interstate Circuit, Inc. v. City of Dallas, 1968, 390 U.S.

676, 88 S.Ct. 1298, 20 L.ed 2, 620

F3% Page

Lanzetta, et al. v. State of New Jersey, 1939, 306 U.S.

451, 59 S.Ct. 618, 83 L.ed. 888 4

Palmer v. City of Euclid, Ohio, 1971, 402 U.S. 544, 91

S.Ct. 1563, 29 L.ed. 2, 214 8

Papachristou v. City of Jax, 1972, 405 U.S. 156, 92 S.Ct.

839, 31 L.ed. 2, 110 5

Rabe v. Washington, 1972, 405 U.S. 313, 92 S.Ct. 993,

31 L.ed. 2, 258 6

Smith v. Florida, 1972, 405 U.S. 172, 92 S.Ct. 848, 31

L.ed. 2, 122 6

SUPREME COURT OF FLORIDA

Franklin v. State and Joyce v. State, Fla. 257, So.2, 21... 13

Locklin v. Pridgeon, Fla., 158 Fla., 737, 30 So.2, 102 ........ 12

State v. Barquet, 262 So.2, 431 13

FLORIDA STATE BOARD OF NURSING,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL,

FIRST, DISTRICT OF FLORIDA

COMES NOW, BEVERLY JANE WINN, and respect-

fully asks this Honorable Court to issue its Writ of Certi-

orari to review the decision of the District Court of Appeal,

First District of Florida, rendered on January 23, 1973.

JURISDICTION

The Judgment of the Supreme Court of Florida denying

Petition for Writ of Certiorari was entered on 24th day of

April, 1973, Petition for re-hearing filed April 30, 1973, and

denied June 8, 1973. The Statutory basis for this Court’s

jurisdiction is 28 USC 1257(3).

STATUTE INVOLVED

(This Statute, 464.21(1)(b) F.S., because of its length,

will be set out in Appendix 1).

QUESTION PRESENTED

By the statement “Immoral or unprofessional conduct” as

one of the grounds for revocation of a nurse’s license, and

without any further statement or explanation as to what these

two items consist of, is Florida Statute 464.21(1)(b) suffi-

ciently definite to meet the minimum requirements of due

process?

STATEMENT OF THE CASE

This case had its inception when the Petitioner was served

with a Complaint from the Florida State Board of Nursing,

alleging “Immoral and unprofessional” conduct, and charged

inter alia:

“As a basis for the charge of immoral and unprofes-

sional conduct, it is alleged that on or about April and

May of 1970 at Grant Haven Hospital, Jacksonville,

Florida and thereafter until December 19, 1970, at

various other places in Duval County, Florida, the said

BEVERLY JANE WINN solicited and encouraged

one SHARON LAMSON SHOAF, then a minor aged

17 years, to engage in immoral acts contrary to the

Statutes of the State of Florida.” (App. 2)

After a hearing before the full Board on June 13, 1973,

an Order was entered suspending the license of the Peti-

tioner as a registered nurse for a period of two (2) years.

(App. 3)

The only recourse for judicial review open to an aggrieved

person as a result of-orders of any regulatory board is Flor-

ida Statute 120.31. The Statute, because of its length, will

be reproduced in the Appendix (No. 4)

The Petitioner for Writ of Certiorari in the District Court,

(App. 5) raised various points including the one of being

overbroad and violation of due process of law, but was de-

nied by the District Court of Florida, First District, on Janu-

ary 23, 1973. (App. 6) Petition for Re-hearing (App. 7) was

denied on February 27, 1973. (App. 8) Petitioner then went

to the discretionary remedies provided under the Florida

Rules of Appellate Procedure, filing a Petition for Certiorari

in the Supreme Court of the State. (App. 9) The Petition

was denied on April 24, 1973, (App. 10) on the basis that:

“It appearing unto the Court that it is without jurisdiction

. ". Petition for re-hearing was filed on April 30, 1973,

(App. 11) and denied on June 8, 1973. (App. 12) On June

11, 1973, Petition was filed in the Supreme Court of Florida

for a Stay pending filing of a Petition for Certiorari to this

Court. (App. 13) Said Court granted ten (10) days Stay; up

to and including June 25, 1973. (App. 14).

REASONS FOR GRANTING OF WRIT

The charges against Petitioner herein were based entirely

on Florida Statute 464.21(1)(b), which states a general

charge of “immoral or unprofessional conduct.’ There is no

further requirement of the statute evidencing what acts or

Pe ee tT

conduct are to be defined as immoral or unprofessional. It

is the belief, therefore, of the Petitioner that the statute does

not place her upon sufficient notice as to just what acts or

conduct are proscribed by the statute.

The Complaint of the Florida State Board of Nursing which

is set forth in the Appendix (2), is so vague and indefinite

as to have made it impossible to prepare and present before

the Board a proper defense thereto.

It is stated in Lanzetta, et al. v. State of New Jersey, 1939,

306 US 451, 59 S.Ct. 618, 83 L.ed. 888, as follows:

“If on its face the challenged provision is repugnant to

the due process clause, specification of details of the

offense intended to be charged would not serve to vali-

date it. Cf. United States v. Reese, 92 U.S. 214, 221,

23 L.ed. 563; Czarra v. Board of Medical Supervisors,

25 App.D.C. 443. It is the statute, not the accusation

under it, that prescribes the rule to govern conduct and

warns against transgression. See Stromberg v. Califor-

nia, 283 U.S. 359,368, 51 S.Ct. 532, 535, 75 L.Ed. 1117,

73 A.L.R. 1484; Lovell v. Griffin, 303 U.S. 444, 58 S.Ct.

666, 82 L.ed. 949. No one may be required at peril of

life, liberty or property to speculate as to the mean-

ing of penal statutes. All are entitled to be informed

as to what the State commands or forbids. The appli-

cable rule is stated in Connally v. General Const. Co.,

269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.ed. 322:

‘That the terms of a penal statute creating a new of-

fense must be sufficiently explicit to inform those who

are subject to it what conduct on their part will render

them liable to its penalties is a well-recognized require-

ment, consonant alike with ordinary notions of fair

play and the settled rules of law; and a statute which

either forbids or required the doing of an act in terms

so vague that men of common intelligence must nec-

essarily guess at its meaning and differ as to its appli-

cation violates the first essential of due process of law.’”

(Underscoring Supplied )

Under the case law, as set forth, it is the statute that

counts. The term “immoral and unprofessional” conduct not

only varies in various parts of the state, but also in various

parts of the country. Its meaning in one portion of the state

may be quite different from its meaning in another part. The

Statute in question may not be validated by mere specifica-

tion and charges thereunder of details of the offense intend-

ing to be charged. .

There is no guideline in Florida or any standard set up

to let the public or the holders of nursing licenses know

exactly what conduct is prohibited. It is thus possible for

the Nursing Board to employ such standards with no ad-

vance notice, as may meet their personal views. There is

nothing whatever within the statute itself or in the few cases

directly in point to prevent arbitrary and discriminatory en-

forcement. It is the position of the Petitioner that the stat-

ute is so vague, uncertain and indefinite as to render it

clearly violative of Petitioner's 14th Amendment right to due

process of law. It is the further position of the Petitioner that

any statute whose language is so vague and indefinite that

either a man or woman of common intelligence could not

determine in advance whether or not any particular act or

conduct would collide with the statute must fall under the

14th Amendment as being overbroad and indefinite.

One of the leading cases along this line was Papachristou

v. City of Jax, 1972, 405 U.S. 156, 92 S.Ct. 839, 31 L.ed.2,

110, in which eight defendants were convicted in the Jack-

sonville, Florida municipal court of violating the Jacksonville

vagrancy ordinance which levied criminal penalties on 15

different types of violations. On Certiorari to the United

States Supreme Court, judgment was reversed. It was held

that the Jacksonville ordinance was void for vagueness both

in the sense that it failed to give a person of ordinary intelli-

by ordinance and because it encourages arbitrary and erratic

In Smith v. Florida, 1972, 405 U.S. 172, 92 S.Ct. 848, 31

L.Ed.2 122, the Florida vagrancy statute 856.02 F.S.A. in-

cludes in the term “vagrants” who can be criminally charged

and convicted, “persons wondering or strolling around from

place to place without any lawful purpose or object.” The

Supreme Court stated: “We therefore vacate and remand the

judgment in the instant case for reconsideration in light of

| Papachristou.” (supra)

In Rabe v. Washington, 1972, 405 U.S. 313, 92 S.Ct. 993,

31 LEd. 2d 258, it is stated:

“To avoid the constitutional vice of vagueness, it is

necessary, at a minimum, that a statute give fair notice

that certain conduct is proscribed. The statute under

which petition was prosecuted, however, made no men-

tion that the “context” or location of the exhibition was

as element of the offense somehow modifying the

word “obscene.” Petitioner’s convictions was thus af-

firmed under a statute with a meaning quite different

from the one he was charged with violating.

“We hold simply that a state may not criminally

punish the exhibition at a drive-in theatre of a motion

Se a on

= RADE ST STS Oe tine Fi On ale SR sae.

picture where the statute, used to support the convic-

tion, has not given fair notice that the location of the

exhibition was a vital element of the offense.”

In Gooding v. Wilson, 1972, 405 U.S. 518, 31 L.Ed.2 408,

92 S.Ct. 1103, a habeas corpus proceeding by a state prisoner

to set aside his conviction under a Georgia statute on. the

grounds that the statute was unconstitutional, the United

States Supreme Court held that the Georgia statute which pro-

vided that “any person who shall, without provocation, use

to or of another, and in his presence . . . approbrious words

or abusive language, tending to cause a breach of the peace

- Shall be guilty of a misdemeanor and which had not

been narrowed by the Georgia courts to apply only to “fight-

ing words” which by their very utterance . . . tend to incite

an immediate breach of the peace, was on its face unconstitu-

tionally vague and overbroad.” The Court further stated:

“Accordingly, we agree with the conclusion of the District

Court, “(t)he fault of the statute is that it leaves wide open

the standard of responsibility so that it is easily susceptible to

improper application.” And also: “Rather, that broad stand-

ard effectively ‘licenses the jury to create its own standard in

each case.’” (Underscoring supplied )

In Interstate Circuit, Inc. v. City of Dallas, 1968, 390 U.S.

676, 88 S.Ct. 1298, 20 L.ed 2, 620, the Court held that an

ordinance providing for classification of films as suitable for

young persons or not suitable for young persons, and in de-

fining unsuitable class, using standards dependent upon un-

derstanding of individual censors, was invalid for want of

narrowly drawn reasonable and definite standards, and stated

in part:

“The vice of vagueness is particularly pronounced where

expression is sought to be subjected to licensing . . .

of course, as the Court said in Joseph Burstyn, Inc. v.

Wilson, 343 U.S. at 502, 72 S.Ct. at 781, “(i)t does not

follow that the Constitution requires absolute freedom

to exhibit every motion picture of every kind at all

times and all places.’ What does follow at the least,

as the cases above illustrate, is that the restrictions

imposed cannot be so vague as to set ‘the censor... .

adrift upon a boundless sea . . .” id., at 504, 72 S.Ct.

at 782. In short, as Justice Frankfurter said, ‘legisla-

tion must not be so vague, the language so loose, as

to leave to those who have to apply it too wide a dis-

cretion . . .” Kingsley Int'l Pictures Corp. v. Regents,

360 U.S. at 694, 79 S.Ct. at 1368, (concurring in re-

sult), one reason being that ‘where licensing is rested,

in the first instance, in an administrative agency, the

available judicial review is in effect rendered inopera-

tive (by vagueness),’ Joseph Burstyn, Inc. v. Wilson,

supra, 343 U.S. at 532, 72 S.Ct. at 796 (concurring

opinion). Thus, to the extent that vague standards do

not sufficiently guide the censor, the problem is not

cured merely by affording de novo judicial review.

Vague standards, unless narrowed by interpretation,

encourage erractic administration whether the censor

be administrative or judicial; ‘individual impressions

become the yardstick of action, and result in regulation

in accordance with the beliefs of the individual censor

rather than the regulation by law,’ Kingsley Int Pic-

tures Corp. v. Regents, supra, 360 U. S. at 701, 79 S.Ct.

at 1372 (Clark, J., concurring in result)”

In Palmer v. City of Euclid, Ohio, 1971, 402 U.S. 544, 91

S.Ct. 1563, 29 L.ed. 2, 214, the Appellant Palmer was con-

victed by a jury of violating the City of Euclid’s “suspicious

person ordinance” that is,

ee ee Ee

“Any person who wanders about the streets or other

public ways or who is found abroad at late or unusual

hours in the night without any visible or lawful busi-

ness and who does not give satisfactory account of

himself.”

The Supreme Court of the United States said:

“We reverse the judgment against Palmer because the

ordinance is so vague and lacking in ascertainable

standards of guilt that, as applied to Palmer, it failed

to give ‘a person of ordinary intelligence fair notice

that his contemplated conduct is forbidden . . .” United

States v. Harriss, 347 U.S. 612, 617 (1954)’

In Coates, et al v. City of Cincinnati, 1971, 402 US. 611,

91 S.Ct. 1686, 29 L.ed 2, 98, a Cincinnati, Ohio, ordinance

makes it a criminal offense for “three or more persons to

assemble . . . on any of the seidwalks . . . and there con-

duct themselves in a manner annoying to persons passing

by ...” The issue before us is whether this ordinance is un-

constitutional on its face. The court said:

“We are thus relegated, at best, to the words of the

ordinance itself. If three or more people meet together

on a sidewalk or street corner, they must conduct them-

selves so as not to annoy any police officer or other

persons who should happen to pass by. In our opinion

this ordinance is unconstitutionally vague because it

subjects the exercise of the right of assembly to an un-

ascertainable standard, and unconstitutionally broad

because it authorizes the punishment of constitutionally

protected conduct.

“Conduct that annoys some people does not annoy

others. Thus, the ordinance is vague not in the sense

tl tl ih ct

that it requires a person to conform his conduct to

an imprecise but comprehensible normative standard,

but‘ rather in the sense that no standard of conduct is

specified at all: As a result, ‘men of common intelli-

gence must necessarily guess at its meaning;’” Connally

v. General Construction Co., 269 U.S. 385, 391.”

zs * *

GIACCIO v. STATE OF PENNSYLVANIA

(1966) 382 U.S. 399, 86 S.Ct. 518, 15 L.ed. 2, 447

Defendant was acquitted of wantonly pointing and dis-

charging firearm but was sentenced to pay costs of prosecu-

tion. Supreme Court, Mr. Justice Black, held that the Penn-

sylvania statute authorizing the jury to impose cost of crimi-

nal prosecution on defendant acquitted of a misdemeanor

charge is in violation of due process because of vagueness

and absence of any standards sufficient to enable defendants

to protect themselves against arbitrary and discriminatory

imposition of costs. The Court in its opinion, said:

“It would be difficult, if not impossible, for a person

to prepare a defense against such general abstract

charges as “misconduct,” or “reprehensible conduct.”

If used in a statute which imposed forfeitures, punish-

ments or judgments for costs, such loose and unlimit-

ing terms would certainly cause the statute to fail to

measure up to the requirements of the Due Process

Clause. And these terms are no more effective to make

a statute valid which standing alone is void for vague-

ness.

CRAMP, JR. v. BOARD OF PUBLIC INSTRUCTION OF

ORANGE COUNTY, FLA.

(1961) 368 U.S. 278, 82 S.Ct. 275, 7 Led. 2, 285

This was an action by a schoolteacher challenging the con-

stitutionality of the loyalty oath required by the statute of

the State of Florida; this Court held that a Florida State stat-

ute requiring each employee of state to execute oath that he

had never lent his aid, support, advice, counsel or influence

to Communist Party, at risk of subsequent prosecution for

perjury or face immediate dismissal from public service, was

unconstitutionally vague and constituted a denial of due proc-

ess of law, and in so holding stated in part:

“We think this case demonstrably falls within the

compass of those decisions of the Court which hold that

a * a statute which either forbids or requires the

doing of an act in terms so vague that men of com-

mon intelligence must necessarily guess at its meaning

and differ as to its application violates the first essen-

tial of due process of law.” Connally v. General Con-

struction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70

L.Ed. 322. “No one may be required at peril of life,

liberty or property to speculate as to the meaning of

penal statutes. All are entitled to be informed as to

what the State commands or forbids.” Lanzetta v.

State of New Jersey, 306 U.S. 451, 453, 50 S.Ct. 618,

619, 83 L.Ed. 888.” “Words which are vague and

fluid * * * may be as much of a trap for the innocent

as the ancient laws of Caligula.” United States v. Car-

diff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200.

“In the light of our decisions, it appears upon a mere

inspections that these general words and phrases are so

vague and indefinite that any penalty prescribed for

their violation constitutes a denial of due process of

law. It is not the penalty itself that is invalid, but

the exaction of obedience to a rule or standard that is

so vague and indefinite as to be really no rule or

standard at all.” Champlin Refining Co. v. Corpora-

tion Commission of Oklahoma, 286, U.S. 210, 243, 52

S.Ct. 559, 568, 76 L.Ed. 1062.

CASES CITED BY THE SUPREME COURT OF FLORIDA

Locklin v. Pridgeon, 158 Fla., 737, 30 So.2 102 — Petitioner

in habeas corpus showed he was indicted for an alleged vio-

lation of Chapter 22671, Acts of 1945, which were brought

forward as section 839.22, 1946 Cumulative Supplement to

FS. 1941. The Act provided “that it shall be unlawful for

any person to commit any act under color of authority as

an officer agent or employee of the U. S. Government, State

of Florida, or any political subdivision thereof when such

act is not authorized by law; or to intimidate or otherwise by

color of authority cause any other person to release infor-

mation or allow inspection of records by extending privileges

not required by law.” (Emphasis supplied by Court)

The Florida Supreme Court held that the infirmative of

the statute was that it was too vague, indefinite and un-

certain to constitute notice of crime or crimes or unlawful

acts which it purports to prohibit. The Statute describes no

ascertainable standard of guilt. The Court said: “If the stat-

ute leaves it to a ministerial officer to determine the thing

to which the statute is to be applied, and if the definition

is not commonly known as the modes already pointed out,

th act becomes invalid, because it creates an unwarranted

and void delegation of legislative power.” The Court further

states: “When the terms of the statute are so uncertain as

to their meaning that the Court cannot say with reasonable

certainty what is intended, it will pronounce the enactment

void.” Further quoting: “A statute which requires the doing

of an act so indefinitely described that man must guess at

its meaning violates due process of law”... ... “A statute,

especially a penal statute must be definite to be valid.”

In Franklin v. Staté and Joyce v. State, Fla., 257 So.2 21 —

The Statute on which these two were convicted reads as

follows: “Whoever commits the abominable and detestable

crime against nature, either with mankind or with beast, shall

be punished by imprisonment in the state prison not exceed-

ing 20 years.”

The Court said: “Very serious question is raised as to

whether the statute meets the recognized constitutional test

that it inform the average person of common intelligence as

to what is prohibited so that he need not speculate as to the

statutory meaning. If the language does not meet this test

then it must fall and the matter must be left to legislative

correction. This statute and others relating to a variety of

sex offenses need immediate legislative review and action.”

The Court also held: “Further reasoning dictating our re-

examination here is expansion of constitutional rulings on the

invasion of private rights by state intrusion which must be

taken into account and consideration of the statute’s continu-

ing validity.” Further, “it is authoritatively recognized that

this statute provides a penalty for a crime, but fails to de-

liniate (sic) what conduct will violate its terms.” (Emphasis

added by court)

State v. Barquet, Fla., 262 So.2 431 — Defendants were

charged with violating the abortion statute in the criminal

court of record in Dade County, which declared the statute

unconstitutional, the state appealed. The Supreme Court

“those necessary to preserve the life of such mother” was un-

constitutionally vague. The Court held in part: “If a statute,

in defining a criminal offense, omits certain necessary and

essential provisions which serve to impress the acts com-

mitted as being wrongful and criminal, the courts cannot

supply the deficiencies or undertake to make the statute

definite and certain because to do so would be to perform

a lawmaking function; the public must be informed as to acts

which are crimes by statute, rather than by judicial opinion.”

Art. 2, Section 3. The Court further pointed out that to rec-

ognize the constitutional test, it must inform the average

person of common intelligence as to what is prohibited so

that they may nat speculate as to the statutory meaning.

CONCLUSION

The Petitioner submits that the importance of reviewing

this case by this Court goes far beyond the individual in-

volved.

The Regulatory Boards of the State of Florida operate with-

out any guidelines, either legislatively or judicially imposed.

They are responsible to no one and well within the pro-

scriptions oft expressed by this Court against allowing un-

limited discretion to a ministerial board without guidelines

to be followed when they exercise them.

CRIT, GRR el RAS

The Petitioner submits that the question here involved is

substantial and worthy of a review by this Court.

Respectfully submitted,

STEPHEN H. DAVIS P. DONALD DeHOFF

802 Barnett Bank Building and 802 Barnett Bank Building

Jacksonville, Florida 32202 Jacksonville, Florida 32202

Attorney for Petitioner Attorney for Petitioner

_ CERTIFICATE OF SERVICE

I HEREBY CERTIFY that copy of the foregoing Petition

for Writ of Certiorari and appendices has been furnished The

Supreme Court of Florida, Tallahassee, Florida, Florida Dis-

trict Court of Appeal, First District, Tallahassee, Florida, and

to Julius L. Finegold, Esquire, Seaboard Coast Line Building,

Jacksonville, Florida, attorney for Florida State Board of

Nursing, by United States Mail, this ........ day of July, 1973.

“APPENDIX 1”

“Volume 15(a) F.S.A. page 283 et seq.”

464.21 Disciplinary proceedings

(1) Grounds for discipline. ~ The board shall have the

authority to deny a license to any applicant, or discipline

the holder of a license or other authority to practice nursing

in the state, whose default has been entered or who has been

heard and found guilty by the board of any of the following:

(a) Fraud in the practice of nursing, or is guilty of fraud

or deceit in the procuring or attempting to procure a license

to practice nursing as a registered professional nurse or as a

licensed practical nurse;

(b) Immoral or unprofessional conduct;

cotics or other habit-forming drugs;

(d) Circulating untrue, fraudulent, misleading or decep-

tive advertising;

(e) Unfitness or incompetency;

(f) Wilfully or repeatedly violating any of the provisions

of this chapter or laws of this state involving moral turpitude;

(g) Conviction of a felony in the courts of this or any other

State, territory or country. Conviction of any offense in an-

other state, territory or country which, if committed in this

state, would

“APPENDIX 2”

“EXCERPT FROM BOARD'S COMPLAINT”

BEFORE THE FLORIDA STATE BOARD OF NURSING

IN THE MATTER OF:

BEVERLY JANE WINN

231 West Eleventh Street

Apartment A

Jacksonville, Florida CASE NO. 71-13

As a Registered Nurse

License No. R.N. 20670

COMPLAINT AND NOTICE OF HEARING

COMES NOW the FLORIDA STATE BOARD OF

NURSING, by and through its undersigned counsel, and

brings this its Complaint against BEVERLY JANE WINN

alleging that the License R.N. No. 20670, previously issued

to BEVERLY JANE WINN, should be suspended, revoked

or disciplinary action taken as provided by Florida Statutes,

Chapter 464.21, because the said BEVERLY JANE WINN

is guilty of immioral and unprofessional conduct within the

meaning of Florida Statutes, 464.21(1)(b), and as a basis

for this, its Complaint, alleges as follows:

1. The undersigned attorney is the attorney of record

for the Florida State Board of Nursing and files this Com-

plaint under the discretion and on behalf of the Florida

State Board of Nursing.

2. Sworn charges have been filed against the said BEV-

ERLY JANE WINN, pursuant to Florida Statutes, Chapter

464.21(4) (a).

LPS

3. As a basis for the charge of immoral and unprofes-

sional conduct, it is alleged that on or about April and May

of 1970 at Grant Haven Hospital, Jacksonville, Florida, and

thereafter until December 19, 1970 at various other places

in Duval County, Florida, the said BEVERLY JANE WINN

solicited and encouraged one Sharon Lamson Shoaf, then a

minor aged 17 years, to engage in immoral acts comtrery to

the Statutes of the State of Florida.

4. At the said times and places aforesaid, the said BEV-

ERLY JANE WINN knew that the said Sharon Lamson Shoaf

was admitted to Grant Haven Hospital for reasons of emo-

tional instability.

5. During the said period of time the said BEVERLY

JANE WINN administered and/or procured for the said

Sharon Lamson Shoaf various prescriptions drugs, including

but not limited to Thorazine and Dils.utin, knowing that the

said drugs had not been prescribed hy Sharon Lamson Shoaf’s

physician.

NOW, THEREFORE, PLEASE BE ADVISED THAT

FORMAL HEARING WILL BE HELD UPON THIS

COMPLAINT BEFORE THE FLORIDA STATE BOARD

OF NURSING OR ITS DULY AUTHORIZED HEARING

OFFICER AT 9:00 O'CLOCK A.M. ON THURSDAY,

SEPTEMBER 2, 1971, OR AS SOON THEREAFTER AS

THIS MATTER MAY BE HEARD, AT THE BOARD'S

EXECUTIVE OFFICES LOCATED AT 4415 BEACH

BOULEVARD, JACKSONVILLE, DUVAL COUNTY,

FLORIDA.

This formal hearing will be held pursuant to Florida Stat-

utes, Chapter 464.21, and Rules and Regulations of the Flori-

da State Board of Nursing, 21 0-5.01 through 21 0-5.23. A

copy of the said Rules and Regulations is enclosed herewith,

and you are advised to read them very carefully as to fully

CRP PSE ABTS BT 2 ES REE Sat weet Se) = ao

apprise you of your rights, and you are particularly cautioned

to read Board Rule 21 05.05, which provides that you must

answer this Complaint within ten (10) days after it is served

on you.

Respectfully submitted this the 6th day of August, 1971.

UNDER THE AUTHORITY AND

DIRECTION OF THE FLORIDA

STATE BOARD OF NURSING

BY: S/ Albert S. C. Millar, Jr.

ALBERT S. C. MILLAR, JR.

1241 King Street

Jacksonville, Florida

“APPENDIX 3”

“ORDER OF THE BOARD”

IN THE MATTER OF:

BEVERLY JANE WINN

231 West Eleventh Street

Apartment A

Jacksonville, Florida CASE NO. 71-13

As a Registered Nurse

License No. R.N. 20670

ee paren oe

PtP Nite

ORDER OF THE BOARD

The above entitled cause came on to be heard on the 4th

day of November, 1971 in the executive offices of the Flor- |

ida State Board of Nursing, 4415 Beach Boulevard, Jackson-

ville, Florida, and it appeared to said Board that the Re-

spondent Beverly Jane Winn, did receive due notice of hear-

ing, and was represented by counsel Stephen H. Davis and

P. Donald DeHoff, Jacksonville, Florida.

That the Respondent either after one (1) year of suspen-

sion or upon termination of the specified period (two (2)

years) may petition the Board to appear for a hearing to

show cause why her license should be reinstated.

DONE AND ORDERED this 13th day of June, 1972.

FLORIDA STATE BOARD OF NURSING

Hazel M. Peeples, R.N.

Secretary-Treasurer

BOARD SEAL

ces: Albert S. C. Millar, Jr.

Stephen H. Davis

and

P. Donald DeHoff

Attorney

“APPENDIX 4”

120.31 Review of agency orders

(1) As an alternative procedure for judicial review, and

except where appellate review is now made directly by the

supreme court, the final orders of an agency entered in any

agency proceeding, or in the exercise of any judicial or quasi-

judicial authority, shall be reviewable by certiorari by the

district courts of appeal with the time and manner prescribed

by the Florida appellate rules. If judicial review is sought

under this section, the petition shall so state. The venue of

the proceedings for such review shall be the appellate dis-

trict which includes the county wherein hearings before the

hearing officer or agency, as the case may be, are conducted,

or if venue cannot be thus determined, then the appellate

district wherein the agency’s executive offices are located.

(2) In cases where certiorari is granted pursuant to this

section, the court may issue its mandate, or order, with di-

rections to the agency to enter such order in the proceed-

ings as is appropriate on the record, or the court may remand

the cause for such further proceedings, including the taking

of testimony, as may to the court seem necessary or proper:

(a) To accord the parties due process of law;

(b) To establish a sufficient record, for review;

or procedural rights; and

(d) To accomplish the purposes and objectives of the law

pursuant to which the administrative proceeding was initiated.

(3) When supersedeas is not otherwise provided for, any

such ruling or order of an agency, may in appropriate cases,

be superseded upon an application for supersedeas showing

good cause therefor, made to the agency, or the court. If the

OAR SF UD AG PAM CO EIT EONS FT TTL awk ee +

ON a RR NO RO hat hed as ale RE BS

(4) When appropriate, a party may attack an adverse or-

der by mandamus, prohibition or injunction, and costs shall

be assessed as provided in other civil actions.

“APPENDIX 5”

“PETITION FOR WRIT OF CERTIORARI TO

DISTRICT COURT”

IN THE DISTRICT COURT OF APPEAL,

FIRST DISTRICT OF FLORIDA

BEVERLY JANE WINN,

Petitioner,

vs.

FLORIDA STATE BOARD OF NURSING,

Respondent.

TO THE DISTRICT COURT OF APPEAL, FIRST DIS-

TRICT OF FLORIDA:

Petitioner, BEVERLY JANE WINN, presents this her

Petition for Writ of Certiorari and states:

1. Petitioner seeks to have reviewed an Order of the

Florida State Board of Nursing, dated the 13th day of June,

1972, in which her registered nurse license was suspended for

a period of two years.

+ ee

2 This Petition is presented under and pursuant to Ar-

ticle 5, Section 4, of the Florida Constitution, and Rule 4.5c

of the Florida Appellate Rules.

3. This Petition is accompanied by a certified transcript

of the record of the proceedings, including the Order Peti-

tioner seeks to have reviewed, and a supporting brief.

4. The following are the facts of the case:

(a) Based upon the sworn charges of Sharon Lamson

Shoaf, the Florida State Board of Nursing filed a complaint

alleging that the said Petitioner was guilty of “immoral and

unprofessional conduct,” in that during certain dates the said

Petitioner solicited and encouraged Sharon Lamson Shoaf,

a minor, 17 years of age, to engage in immoral acts contrary

to the statutes of the state of Florida. (Al).

(b) It was alleged that during the said period of time

the said Petitioner administered and/or procured for the said

Sharon Lamson Shoaf various prescription drugs, including

but not limited to Thorazine and Dilantin, knowing that the

same had not been prescribed by Sharon Lamson Shoaf's

physician. (Al).

owner of the nurses’s license and denying the other allega-

tions. (A2).

(d) On September 10, 1971, Petitioner filed a Mo

tion in the form of Interrogatories. (A3).

(e) Another Motion was filed by the Petitioner on

September 28, 1971, asking for copy of said sworn charges.

(A5).

(f) Said Motion of September 10, 1971, was denied.

(A6).

(g) Petitioner’s. Motion was filed on September 28,

1971, asking for a more definite statement of facts underlying

the charges pressed against her. (A6).

(h) The Board, on September 23, 1971, denied the

Motion of September 10, 1971. (A8).

(i) Order was filed on October 11, 1971, by the Board

denying both Motions dated September 28, 1971. (A6).

(j) The Petitioner’s attorneys were never furnished

with a copy of said sworn charges and the only time they

did see them was in the middle of cross-examination of said

Sharon Lamson Shoaf, when there was a ten-minute break

and Petitioner's attorneys were allowed to read the said

charges. Charges were never introduced into evidence.

(k) The Board’s reason for not furnishing copy of

said charges was that they were “privileged.”

(1) Despite the fact that the information sought by

the Petitioner's attorneys regarding the information upon

which the Complaint was based was never furnished and

they were forced to go to trial and at the conclusion of the

testimony for the said Board, Petitioner's attorneys made

both oral and written Motion for a Recess or Continuance,

which was denied. Said Motion is on page 255 of the tran-

script and the denial is on page 257 of the transcript.

(m) On March 31, 1972, the Board’s Hearing Officer

made her report of “Findings of Fact” and also her “Conclu-

a Cree

‘sions of Law and Recommendations” (A8 and 11). There-

after, the Petitioner filed her Exceptions to the Hearing

Officer’s Recommendations. (A 12). Subsequently, Petition-

er’s attorneys appeared before the entire Board and argued

the matter.

(n) On June 13, 1972, th Board entered its Order

which is the one appealed from. (A 17).

5. On the foregoing facts, the Court was presented with

the following points of law:

(a) Are the sworn charges filed before the Board of

Nursing “privileged” to the extent that a Respondent cannot

obtain copies of same?

(b) The Board held “yes” despite the rulings of the

Courts in the following cases: Caswell v. Manhattan, 399

Fed. 2d 417, CCA 5th, page 3; Shell v. State Road Dept.,

(Fla.) 135 So. 2d 857, page 4; Herold v. Computer Compo-

nents International (Fla.) 252 So. 2d 576, page 4; State v.

Dewell, (Fla.) 167 So. 687, page 5; United States v. Krule-

witch, 145 F(2d) 76 CCA2, page 6, State of Washington ex

rel. Haughland v. Hon. Ralph Smythe, 169 P2d 706, page 7;

Fleming v. Enterprise Box Co., 36 Fed. Supp. 606 SD Fia.,

page 7; Roviaro v. United States, T7 S. Ct. 623, 363 U. S. 60,

1. L. Ed. (2) 639, page 8.

a more definite statement of facts underlying the charges

against her and should said Board furnish her with same?

The Board held “no.”

(d) This is in the face of the Ruling in Powell v. Board

of Public Inst. of Levy County, 229 So. 2d 308, page 10;

State ex rel. Jordan v. Pattishal, et al, 126 So. 147, page 11;

and Lowell v. State of Fla., 253 So. 2d 448, page 11.

. Ppa LE hee AEA EA ALA BEEMAN 5 iE

w= at om mewpeney calbmamnene ning

(e) In view of the facts of this case and despite nu-

merous requests for copies of sworn charges, they were never

furnished the Petitioner. Was not the Board in error in not

granting Motion for Continuance? The Board said “no,” which

was contrary to the case of Powell, supra, and Floyd v. State

of Florida, 90 So. 2d 105, page 13.

(f) Is the Statute which merely states “immoral and

unprofessional conduct” so vague and ambiguous that it vio-

lates due process of law; the Board held “no.” This is in face

of Claude Smith v. State of Florida, 252 So. 2d 465, page 15;

Franklin v. State, 257 So. 2d 21, page 16; In re: Fuller, 255

So. 2d 1, page 19; and Gooding v. Wilson, 92 S. Ct. 1103,

page 19.

(g) In view of all the testimony relating to alleged

acts which took place one year before, was this sufficient to

hold the Petitioner guilty of the charges alleged against her —

the Board held “yes.” This in view of the Court ruling in

State v. Junkin, (Fla.) 89 So. 2d 481, page 20.

(h) The Petitioner did not testify at the hearing; yet

the Hearing Officer made the following finding: “The Re-

spondent did not elect to testify”; was this not in violation

of ruling 1.250 Florida Rules of Civil Procedure, and consti-

tuted reversible error? Petitioner says “yes.”

(i) Was the Board conducted in a fair and impartial

manner when the Board’s attorney acted as advisor prosecu-

tor and examiner of witnesses appearing before the Board;

the Board held “yes,” which seemed to conflict with Metro-

politan Dade County v. Florida Processing Company, 3rd

District, 218 So. 2d 495, page 21.

5. The Order and decision of the Florida State Board of

Nursing which Petitioner seeks to have reviewed is in direct

conflict with both Florida and other states, including Fed-

eral and United States Supreme Court authorities. Because

of the reasons and authorities set forth in Petitioner's Brief,

it is believed that the Order or decree hereby sought to be

reviewed is erroneous and that the authorities cited by Peti-

tioner are correct and should be approved by this Court as

the controlling law for the State of Florida.

WHEREFORE, Petitioner requests this Court to grant a

Writ of Certiorari and enter its Order quashing the order or

decree hereby sought to be reviewed and granting such

other and further relief as shall seem right and proper to

the Court.

STEPHEN H. DAVIS and

P. DONALD DeHOFF

Attorneys for Petitioner

802 Barnett Bank Building

Jacksonville, Florida 32202

Dred Dane PTH AN

“APPENDIX 6”

“DISTRICT COURT'S DENIAL OF

PETITION FOR CERTIORARI”

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

JANUARY TERM, A. D. 1973

NOT FINAL UNTIL TIME EXPIRES TO

FILE REHEARING PETITION AND

DISPOSITION THEREOF IF FILED.

CASE NO. R-367

BEVERLY JANE WINN,

Petitioner,

-vs-

FLORIDA STATE BOARD OF NURSING,

Respondent.

Opinion filed January 23, 1973.

Petition for Writ of Certiorari — Original Jurisdiction.

Stephen H. Davis and P. Donald DeHoff, for Petitioner.

Albert S.C. Millar, Jr., for Respondent.

PER CURIAM.

Petition for Writ of Certiorari denied.

SPECTOR, CHIEF JUDGE, RAWLS and JOHNSON, JJ.

CONCUR.

“APPENDIX 7”

“PETITION FOR RE-HEARING IN DISTRICT COURT”

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT OF FLORIDA

Case No. R-367

BEVERLY JANE WINN,

Petitioner,

-vS-

FLORIDA STATE BOARD OF NURSING,

Respondent.

The Petitioner, BEVERLY JANE WINN, by and through

her undersigned attorneys, files this her Motion for Re-Hear-

ing of the Court's opinion filed January 23, 1973, and for

grounds for same, says:

1. The Florida Board of Nursing charged the Petitioner

with being guilty of “immoral and unprofessional conduct”

based on section 464.21 (1) (b) FS. and alleged as a basis

for the charge of immoral and unprofessional conduct “that

on or about April and May of 1970, at Grant Haven Hos-

1970, at various other places in Duval County, Florida, the

said BEVERLY JANE WINN, solicited and encouraged one

in immoral acts contrary to the Statutes of the State of Flori-

da,” and found her guilty of “unprofessional and immoral con-

duct.”

piper ATP Oaht eas Aes ae,

2. Said statute being penal in nature is unconstitutional by

being vague and indefinite and overbroad, and the allega-

tions are not set forth in language which is relevant to today’s

society so that men of common intelligence must necessarily

guess as to its meaning and differ as to its application and

leaving up to the individual hearing authorities their own

interpretation. We believe that our said grounds for re-hear-

ing comes within the law as laid down by the Florida Supreme

Court in the cases of Locklin v. Pridgeon 30 So.2 102; Frank- .

lin v. State and Joyce v. State, 257 So.2 21; State of Florida

v. Barquet 262 So.2 431 (abortion statute); United States

Supreme Court case Pappachristou v. City of Jacksonville

OR U.S. ........ 31 L.ed. 2 110, 92 Sup. Ct. .......; and Gooding

v. Wilson, 92 S.Ct. 1103 (1972) 405 U. S. 518; 31 L.ed. (2)

408, 40 Law Week 4329.

3. We believe that the Court through oversight failed to

consider the constitutionality of said cases in relation to the

said charges and findings in the instant case, based on Sec-

tion 464.21 (1) (b), F.S.

Respectfully submitted,

STEPHEN H. DAVIS and

P. DONALD DeHOFF

By: /s/ P. DONALD DeHOFF

Attorneys for Petitioner

802 Barnett Bank Building

Jacksonville, Florida 32202

I HEREBY CERTIFY that copy of the foregoing Petition

for Re-Hearing has been furnished Albert S. C. Millar, Jr.,

Attorney for Florida State Board of Nursing, 1233 King St.,

: Jacksonville, Florida, by United States mail, this 5th day of

February, 1973.

/s/ P. DONALD DeHOFF

Attorney

“APPENDIX 8”

“DENIAL OF PETITION FOR RE-HEARING

IN THE DISTRICT COURT”

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

JANUARY TERM, A. D. 1973

CASE NO. R-397

BEVERLY JANE WINN,

Petitioner, ; ;

-vs-

FLORIDA STATE BOARD OF NURSING,

Respondent.

ORDER

Petition for Rehearing having been considered,

IT IS ORDERED that the petition is hereby denied.

WITNESS the Honorable Sam Spector, Chief Judge, and

Seal of the Court this 27th day of February, A. D. 1973.

/s/ RAYMOND E. RHODES

Clerk

A True Copy

ATTEST:

cag i LDS NA TS AAA DED

/s/ RAYMOND E. RHODES |

Clerk, First District Court of Appeal

Tallahassee, Florida

PY ARIS tPA: LR PR pA ETE awe San Aiivenes Pi

“APPENDIX 9”

“PETITION FOR CERTIORARI IN

FLORIDA SUPREME COURT”

IN THE SUPREME COURT OF FLORIDA

BEVERLY JANE WINN,

Petitioner,

-vs-

FLORIDA STATE BOARD OF NURSING,

Respondent,

PETITION FOR CERTIORARI

TO THE DISTRICT COURT OF APPEALS,

FIRST DISTRICT

STEPHEN H. DAVIS and

P. DONALD DeHOFF :

Attorneys for Petitioner §

802 Barnett Bank Building

Jacksonville, Florida 32202

TERE 9 Lo Se ee

IN THE SUPREME COURT OF FLORIDA

BEVERLY JANE WINN,

Petitioner,

-Vs-

FLORIDA STATE BOARD OF NURSING,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL, FIRST DISTRICT

TO THE SUPREME COURT OF THE STATE OF

FLORIDA:

Petitioner, BEVERLY JANE WINN, presents this her Peti-

tion for Writ of Certiorari, and states:

1. Petitioner seeks to have reviewed opinion of the Dis-

trict Court of Appeals, First District of Florida, dated Janu-

ary 23, 1973, and filed in the records of the said District

Court on the 23rd day of January, 1973, in Minute Book ........ :

2. This Petition is presented under and pursuant to Article

5 Section 4 of the Florida Constitution and rule 4.5(c) (6)

of Florida Appellate Rules.

3. This Petition is accompanied by conformed copies of

transcript of record of the proceedings including the opinion

the Petitioner seeks to have reviewed, and a supporting Brief.

4. Herein, “A” refers to records of pleadings and also re-

ported cases.

EM ye

AR AT i Rw

5. Unless otherwise noted, underscoring is supplied.

6. The following are the facts of the case:

Florida Statute Chapter 464.21 because the said BEVERLY

Thereafter, Petition for Certiorari was filed in the District

Court of Appeals, First District of Florida, (Exhibit 4) alleg-

ing, among other things, that the said Statute 464.21(1\()

was unconstitutional. The District Court of Appeals entered

its opinion on January 23, 1973, in words as follows:

“PER CURIAM Petition for Writ of Certiorari Denied (Ex-

hibit 5).

Petition for Rehearing was filed by the Petitioner herein

on Febiruary 5, 1973, (Exhibit 6) and the said District Court

of Appeals did enter its Order on February 27, 1973, deny-

ing said Petition (Exhibit 7).

7. On Petition to the First District Court of Appeals for

Writ of Certiorari, numerous points were raised, including the

following:

Are the charges of immoral and unprofessional con-

duct so vague and ambiguous that one must guess at

its meaning and differ as to its application which vio

lates due process of law under the Constitutions of the

State of Florida and United States?

The District Court of Appeals in its opinion, in effect, stated

“no.”

This point of law is involved in and decided by the Su-

premt Court of Florida and United States Supreme Court in

the following cases:

Locklin v. Pridgeon, Fla. 30 So.2 102

Franklin v. State, 257 So.2 21

State v. Barquet, Fla., 262 So.2 431

Papachristou, et al. v. City of Jax.

eden US ........ 31 L Ed 2d 110, 92 S Ct.

Gooding v. Wilson, 92 S.Ct. 1103, P. 19

Copies of the above decisions are attached as Exhibits 8

through 12.

AE EE LEE

In Locklin v. Pridgeon, Fla. 30 So.2 102, which was based

upon the language of the statute, it is stated: “it shall be un-

lawful for any person to commit any act under color of au-

thority as an officer, agent, employee of the United States

government, state of Florida, or any political subdivision

thereof, when such act is not authorized by law.” The Florida

Supreme Court, in reversing, held that the infirmity of the

statute was too vague, indefinite and uncertain to constitute

notice of crime or crimes of unlawful act which it purports

to prohibit. It described no ascertainable standard of guilt

and left it up to a ministerial officer to determine to which

the statute is to be applied and creates an unwarranted and

vaid delegation of legislative power. (Exhibit 8)

In Franklin v. State and Joyce v. State, Florida, there was

a conviction under a statute which reads as follows: “Who-

ever commits the abominable and detestable crime against

nature, either with mankind or with beast shall be punished

by imprisonment in the state prison not exceeding 20 years.”

The Court said a very serious question is raised as to whether

the statute meets the recognized constitutional test that it

inform the average person of common intelligence as to what

is prohibited so that he need not speculate as to statutory

meaning. It was further held that it is further authoritatively

recognized that the statute provides a penalty for a crime

but fails to delineate what conduct will violate its terms. (Ex-

hibit 9)

In State v. Barquet, defendants were charged with viola-

tion of abortion statutes in criminal court of record in Dade

County which declared the statute unconstitutional and the

state appealed. The Supreme Court held that the abortion

statute prohibiting abortions except “those necessary to pre-

serve the life of such mother” was unconstitutionally vague.

ee ee

aoe net mote drain

SEIN IG ASAE CONOR ON BEIGE ler ee

The Court went on to say that if a statute omits certain nec-

essary and essential provisions which serve to impress the acts

committed as being wrongful and criminal, the Courts can-

not supply deficiencies or undertake to make the statute defi-

nite and certain, because to do so would be to perform a

lawmaking function. That in order to recognize constitutional

tests, it must inform the average person of common intelli-

gence as to what is prohibited so that he may not speculate

as to statutory meaning. (Exhibit 10)

In Papachristou v. City of Jacksonville, eight defendants

were convicted in the Jacksonville, Florida, municipal Court

of violating the Jacksonville vagrancy ordinance which levied

criminal penalties on 15 different types of violations. District |

Court of Appeal, First District, dismissed Petition for Writ |

of Certiorari in which the Florida Circuit Court had affirmed

the conviction. On certiorari to the United States Supreme

Court, it was reversed. It was held that the Jacksonville ordi-

nance was void for vagueness, both in the sense that it failed

to give a person of ordinary intelligence fair notice that his

contemplated conduct was forbidden by ordinance, and be-

cause it encouraged arbitrary and eratic arrests and convic-

tions. (Exhibit 11)

In Gooding v. Wilson, this was a case involving a habeas

corpus proceeding by a state prisoner to set aside his con-

viction under a Georgia statute on the grounds that the stat-

ute was unconstitutional. United States Supreme Court held

that the Georgia statute which provided that “any person who

shall, without provocation, use to or of another, and in his

presence . . . . approbrious words or abusive language tend-

ing to cause a breach of the peace . . . . shall be guilty of a

misdemeanor and which had not been narrowed by the

Georgia courts to apply only to “fighting words” which by

sensei tiied ssi s tam ciges aaacadl ——4

their very utterance’. . . tend’ to incite an: immediate breach

of the peace, “was on its face unconstitutionally vague and

overbroad.” (Exhibit 12)

The decision of the District Court of Appeal, First District,

which Petitioner seeks to have reviewed is in direct conflict

with the above mentioned: decisions of the Supreme Court

of Florida and the United States Supreme Court. Because of

the reasos and authorities. set forth. herein, and enlarged in

the Petitioner’s Brief, it is believed that the decision h

sought to be reviewed: is erroneous and: that the conflicting

decisions of the Supreme Court of Florida and the United

States Supreme Court are correct: and should: be approved by

this Court as the controlling law for the State of Florida.

WHEREFORE, Petitioner requests this Court to grant a

Writ of Certiorari and enter its Order quashing the decision

and Order hereby sought to be reviewed, approving the supra

decisions of the Supreme Court of Florida and the United

States Supreme Court as the correct decisions, and granting

such other and further relief as shall seem right and proper

to the Court.

STEPHEN H. DAVIS and

P. DONALD DeHOFF

Attorneys for Petitioner

802 Barnett Bank Building

Jacksonville, Florida 32202

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that copy of the foregoing has been

furnished District Court of Appeals, First District, Tallahassee,

Florida, and to Albert S. C. Millar, Jr., 1233 King Street, Jack-

“APPENDIX 10”

“ORDER OF THE SUPREME COURT OF FLORIDA”

SUPREME COURT OF FLORIDA

JANUARY TERM, A. D. 1973

TUESDAY, APRIL 2%, 1973

Case No. 43,476

DISTRICT COURT OF APPEAL, FIRST DISTRICT

BEVERLY JANE WINN,

Petitioner,

vs.

FLORIDA STATE BOARD OF NURSING,

Respondent.

This cause having heretofore been submitted to the Court

on Petition for Writ of Certiorari, jurisdictional briefs and

portions of the record deemed necessary to reflect jurisdiction

under Florida Appellate Rule 4.5 ¢ (6), and it appearing to

the Court that it is without jurisdiction, it is ordered that

the Petition for Writ of Certiorari be and the same is hereby

denied.

CARLTON, C.J., ROBERTS, ERVIN, ADKINS and DEKLE,

J.J., concur

CC: Hon. Raymond E. Rhodes, Clerk

Hon. Stephen H. Davis;

Hon. P. Donald DeHoff

Hon. Albert S.C. Millar, Jr.

A True Copy

TEST:

(SEAL)

Sid J. White

Clerk Supreme Court.

By Kay D. Yert, P. C.

“APPENDIX 11”

“PETITION FOR RE-HEARING TO SUPREME COURT”

SUPREME COURT OF FLORIDA

January Term

Case No. 43,476

District Court of Appeal, First District

BEVERLY JANE WINN,

Petitioner,

-v-

FLORIDA STATE BOARD OF NURSING,

Respondent.

PETITION FOR RE-HEARING

The Petitioner herein, BEVERLY JANE WINN, by and

through her undersigned attorneys, petitions the Court for

re-hearing on the following:

The Court in its Order of April 24, 1973, denied her Peti-

tion for Writ of Certiorari on grounds “.. . . it appearing to

the Courtthat it is without jurisdiction, it is ordered that the

Petition for Writ of Certiorari be and the same is hereby

denied.” This is rather hard to comprehend inasmuch as

Florida Appellate Rule 4.5¢(6) under the heading From Dis-

trict Court to Supreme Court, states in part “Where any de-

cision of a district court of appeal ...-- or (3) is in direct

conflict with a decision of ..... the Supreme Court on the

same point of law, petition may be filed with the Supreme

Ooh eel n tate = aa ion i

WD NS SIREN RO TREE IRC ML SP IEBA

Court to issue a writ of certiorari to review such decision.”

The record in this court shows that there is a constitutional

question being raised and the decision of the District Court,

First District, is in direct conflict with the Supreme Court's

ruling on the same point of law. Instead of again citing said

cases, we call the same to the Court’s attention. Said cases

cited in our Brief.

STEPHEN H. DAVIS and

P. DONALD DeHOFF

By: /s/ P. DONALD DeHOFF

Attorneys for Petitioner

802 Barnett Bank Building

Jacksoviile, Florida 32202

I HEREBY CERTIFY that copy of the foregoing Petition

for Re-Hearing has been furnished, District Court of Appeal,

First District, Tallahassee, Florida, and to Albert S.C. Millar,

Jr., Esquire, 1233 King Street, Jacksonville, Florida, Attorney

for Florida State Board of Nursing, and to Florida State Board

of Nursing, 1244 Beach Boulevard, Jacksonville, Florida, by

United States Mail, this 30th day of April, 1973.

/s/ P. DONALD DeHOFF

Attorney

BP nV Ag BETO CTR PAS re “| ~

“APPENDIX 12”

“FLORIDA SUPREME COURT DENIAL

OF PETITION FOR RE-HEARING”

IN THE SUPREME COURT OF FLORIDA

JANUARY TERM, A. D. 1973

FRIDAY, JUNE 8, 1973

Case No. 43,476

BEVERLY JANE WINN, ;

Petitioner,

vs.

FLORIDA STATE BOARD OF NURSING,

Respondent.

On consideration of the petition for rehearing filed by

attorneys for petitioner,

IT IS ORDERED by the Court that said petition be and

the same is hereby denied.

CARLTON, CJ., ROBERTS, ERVIN, ADKINS and DEKLE,

J.J., concur

A True Copy CC: Messrs. Stephen H. Davis and

TEST: P. Donald DeHoff

(COURT SEAL) Hon. Albert S.C. Millar, Jr. :

Sid J. White Hon. Raymond E. Rhodes, Clerk }

Clerk Supreme Court.

By: Kay L. Yert, P.C.

(THE ORDER OF APRIL 94, 1973 HAS BEEN MAILED

TO THE CLERK OF THE FIRST DISTRICT COURT OF

APPEAL. )

Baht, 232 AEE ey DAE WHOM

“APPENDIX 13”

“PETITION FOR STAY IN SUPREME COURT”

IN THE SUPREME COURT OF FLORIDA

Case No. 43,476

BEVERLY JANE WINN,

Petitioner,

-vs-

FLORIDA STATE BOARD OF NURSING,

Respondent.

PETITION FOR STAY PENDING REVIEW TO

UNITED STATES SUPREME COURT

Petitioner received copy of an Order in the above styled

cause denying Petition for Re-hearing, dated F riday, June 8,

1973; at the bottom of said Order is typed “The order of April

24, 1973 has been mailed to the clerk of the First District

Court of Appeal.” Petitioner would state to the Court that

she has been awaiting Court’s ruling on her Petition for Re-

hearing and is in the process of filing a Petition for Certiorari

in the United States Supreme Court. Under Rule 27 of the

Rules of the said Supreme Court, an application for a stay

must be made to a Judge of the Court rendering the deci-

sion sought to be reviewed or to such court is same is denied.

The application must be made pursuant to 28 U.S.C. section

2101(f) to a Justice of the Supreme Court for application for

such a stay.

WHEREFORE, Petitioner prays that the Court will recall

in said Order which was mailed to Clerk of the First District

Court of Appeals and to enter its Order staying further pro-

ceeding until passed upon by the United Supreme Court.

STEPHEN H. DAVIS and P. DONALD DeHOFF

By:

Attorneys for Petitioner

802 Barnett Bank Buildig

Jacksonville, Florida 32202

I hereby certify that copy of the foregoing has been fur-

nished Albert S.C. Millar, Jr., Esquire, 1233 King Street, Jack-

sonville, Florida, attorney for Florida State Board of Nursing.

by United States Mail, this llth day of June, 1973.

ATTORNEY

“APPENDIX 14”

“ORDER GRANTING TEN DAY STAY”

IN THE SUPREME COURT OF FLORIDA

JANUARY TERM, A. D. 1973

WEDNESDAY, JUNE 13, 1973

Case No. 43,476

BEVERLY JANE WINN,

Petitioner,

-vs-

FLORIDA STATE BOARD OF NURSING,

Respondent.

REF DDS oe Re) WNW MR ER Hen 8 8! edicts

OS tls eGR PR le at EEO et AD ORE

le aa ted LTE jE ECP AL ERED BH

ae eee ae

Petitioner has filed petition for stay of proceedings and

upon consideration thereof, said petition is granted and pro-

ceedings in this Court are stayed and further proceedings in

the District Court of Appeal, First District, and before the

Florida State Board of Nursing, are hereby stayed to and

- including June 25, 1973, to enable petitioner to seek review

in the Supreme Court of the United States.

The Court does not feel that a stay is justified but in order

to give the petitioner an opportunity to apply to the Supreme

Court of the United States for relief, a temporary stay of ten

days is granted but no further stay will be allowed in this

Court.

A true copy ce: Clerk, First District Court of

TEST: Appeal

Hon. P. Donald DeHoff

Sid J. White Hon. Albert S.C. Millar, Jr.

Clerk Supreme Court

(Court Seal)

By: Bernice L. Saunders

Chief Deputy Clerk

eae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.