Gordon v. Louisiana State Bd. of Nursing

804 So. 2d 34, 2000 La.App. 1 Cir. 0164, 2001 La. App. LEXIS 1640, 2001 WL 700254
CourtLouisiana Court of Appeal
DecidedJune 22, 2001
Docket2000 CA 0164
StatusPublished
Cited by4 cases

This text of 804 So. 2d 34 (Gordon v. Louisiana State Bd. of Nursing) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. Louisiana State Bd. of Nursing, 804 So. 2d 34, 2000 La.App. 1 Cir. 0164, 2001 La. App. LEXIS 1640, 2001 WL 700254 (La. Ct. App. 2001).

Opinion

804 So.2d 34 (2001)

James Morris GORDON
v.
LOUISIANA STATE BOARD OF NURSING.

No. 2000 CA 0164.

Court of Appeal of Louisiana, First Circuit.

June 22, 2001.
Writ Denied November 16, 2001.

*35 Robert G. Pugh, Jr., Shreveport, for Plaintiff-Appellee James Morris Gordon.

E. Wade Shows, Carlos A. Romanach, Baton Rouge, for Defendant-Appellant Louisiana State Board of Nursing.

Before: PARRO, FITZSIMMONS, and GUIDRY, JJ.

GUIDRY, Judge.

A state licensing board appeals the reversal of its decision to deny licensure to an applicant. For the following reasons, we affirm the judgment of the district court and remand for the assessment of court costs, pursuant to La. R.S. 13:5112.

FACTS AND PROCEDURAL HISTORY

James Gordon was licensed as a registered nurse (RN) in Louisiana on March *36 29, 1977.[1] Following his arrest and indictment for the illegal distribution of narcotics, Gordon pled guilty to two counts of distribution of cocaine and one count of conspiracy to distribute cocaine on February 1, 1980. Gordon was sentenced to twenty-, five-, and two-year terms, respectively, at hard labor; said sentences were suspended and Gordon was placed on five years supervised probation. In conjunction with his term of probation, Gordon was ordered to serve one year in the Caddo Correctional Institute, and thereafter to participate in the Odyssey House Program, a drug rehabilitation program in New Orleans, Louisiana.

Following his conviction, the Louisiana State Board of Nursing (LSBN) instituted disciplinary actions against Gordon, which culminated in the revocation of his RN license based on his felony convictions. On April 13, 1982, Gordon's probation was revoked, but he was later granted parole on January 11, 1985. While on parole, Gordon received training and was licensed as a respiratory therapist. On January 25, 1985, Gordon sought to have his RN license reinstated. LSBN initially denied his request based on his failure to complete his parole or obtain a full pardon of the convicted offenses. On August 21, 1991, Gordon satisfactorily completed his term of parole and received a first offender pardon, pursuant to La. Const. art. IV, § 5(E)(1), which was granted automatically "upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor."

Gordon's RN license was subsequently reinstated on November 21, 1991, based on his fulfillment of the punishment prescribed for his felony convictions and his completion of certain continuing education requirements for licensure.[2] He subsequently was granted an executive pardon by Governor Edwin Edwards on September 26, 1994.

Thereafter, Gordon pursued a master's degree in nursing with certification as a family nurse practitioner. On June 1, 1998, he applied for an advanced practice registered nurse (APRN) license, specializing as a family nurse practitioner, and was granted a temporary APRN permit based on his fulfilling the credentialing qualifications for the license. Nevertheless, during the application process, LSBN's staff reviewed the National Council of State Boards of Nursing Disciplinary Database, and on being apprised of the prior disciplinary action based on his felony conviction, Gordon was denied licensure as an APRN.

Gordon sought administrative review of the decision by the executive director of the LSBN, the settlement committee of the LSBN, and ultimately, by the LSBN itself, all of whom ratified the decision of LSBN staff to deny APRN licensure. Gordon subsequently filed a petition seeking judicial review of the LSBN's decision. Following a hearing, the district court reversed the decision of the LSBN to deny licensure and remanded the matter to the LSBN for actions consistent with its ruling. On the denial of its motion for rehearing/new trial, the LSBN suspensively appealed the judgment of the district court.

ASSIGNMENTS OF ERROR

On appeal, the LSBN raises the following assignments of error:

Assignment of Error Number One:

*37 The district court did not apply the statutorily required standard of review and substituted its judgment for that of the LSBN.
Assignment of Error Number Two:
The district court erroneously held that a professional licensing board encroaches upon the governor's pardon power when the basis for its license application denial includes a prior guilty plea for drug distribution.

Assignment of Error Number Three:

The district court erred when it held that the LSBN was estopped from denying an APRN license to Gordon on the basis of character.
Assignment of Error Number Four:
The district court's judgment reversed and remanded the LSBN decision without clear instructions.
Assignment of Error Number Five:
The district court's assessment of costs against the LSBN was not supported by the law and the evidence.

DISCUSSION

In its first assignment of error, the LSBN contends that the district court applied the wrong standard of review in overturning its decision. Judicial review of this matter is governed by La. R.S. 49:964(G), which, in pertinent part, states:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.

In this assignment of error, the LSBN argues that the district court was required to limit its review, pursuant to the provisions of La. R.S. 49:964(G)(6), and in failing to do so, it improperly substituted its determinations for that of the LSBN. We find this argument by the LSBN to lack merit. In its written reasons for judgment, the district court clearly states that it found the decision of the LSBN to be an abrogation of the constitutional power of the governor and as such, in violation of constitutional provisions. Since this is one of the enumerated bases for which a court is authorized to reverse a decision of an administrative agency under La. R.S. 49:964(G), and if its determination is legally correct, then the district court properly reviewed the matter before it.

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Bluebook (online)
804 So. 2d 34, 2000 La.App. 1 Cir. 0164, 2001 La. App. LEXIS 1640, 2001 WL 700254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-louisiana-state-bd-of-nursing-lactapp-2001.