STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 78-977

)

MODESTA RIVERA HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 30, 1978, in Sebring, Florida.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1010 Blackstone Building Jacksonville, Florida

For Respondent: Modesta R. Hernandez

1440 Killarney Drive

Sebring, Florida 33870

The issue posed for decision herein is whether or not the Petitioner's, State of Florida Board of Nursing, actions in issuing a notice of intent to deny Modesta Rivera Hernandez a license as a Licensed Practical Nurse in the State of Florida by endorsement should be sustained.

FINDING OF FACT

Based on my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, the following relevant facts are found.

1. Geraldine B. Johnson is an R.N. employed by the Florida State Board of Nursing and is the Coordinator of the Investigation and Licensing Section. On February 6, 1978 Ms. Johnson reviewed the application submitted by the Respondent, Modesta Rivera Hernandez, which is an application for licensure filed by the Respondent as an L.P.N. by endorsement. Noted on the license application was an indication that the Respondent was licensed in New York. Upon review by the State Board, Respondent's license was sent to the State Nursing Board in Albany, New York for review and affirmation of certain information requested by the State of Florida. Information returned by the

   State Nursing Board in New York revealed that the Respondent was licensed in New York as a Licensed Practical Nurse by waiver.

2. Chapters 464.121(2), Florida Statutes sets out the requirements for licensure by "endorsement". Based on the materials received from the State of New York indicating the Respondent had been licensed by waiver and having never taken a formal examination, the Petitioner advised Respondent of its intent to deny her a license. Ms. Johnson testified that there is no procedure or other provision for licensing a person in the State of Florida by waiver procedures. The Notice of Intent to Deny letter was sent to the Respondent on March 29, 1978. Thereafter, on April 14, 1978, the Respondent requested a hearing pursuant to Chapter 120.57(1) Florida Statutes.

   
   

3. The Respondent testified that she moved to New York during 1946 and was immediately employed by Beth David Hospital in New York City. She testified that she took a regents exam during 1948 and received a score of 88. She testified that she worked for Jewish Memorial Hospital, which is situated in the New York City area, for approximately ten years and was later employed by St. Elizabeth Hospital in New York from 1965 to approximately 1967. During this time she was in charge of surgical floors. The Respondent moved to Florida some time during 1968 after her son contracted polio and it became necessary for her to move to a sunny climate. After relocating to Florida she was employed by Cedars of Lebanon Hospital and by Mount Sinai Hospital in the Miami area.

   During 1977 she moved to Sebring and was employed by Walker Memorial Hospital. Since her employment in Sebring she has received satisfactory ratings from her supervisors. However, when the questions concerning her licensure surfaced, she resigned pending the outcome of these proceedings.

   
   

4. On cross examination the Respondent was unable to offer any documentary or other evidence tending to establish that she had in fact sat for an examination in the State of New York or any other state. In view of the requirements contained in Chapter 464.121, and the absence therein of any provision entitling an applicant to obtain a license by waiver when such applicant did not sit for an exam, I shall recommend that the agency's action be sustained. Of particular note was the information received from the State of New York which substantiated the Respondent's claim that the agency acted on material submitted from the State of New York which revealed that the Respondent was licensed in New York by waiver. (See Petitioner's Exhibit #1). Finally it was noted that the Board, upon consideration of the Respondent's application, reviewed the Respondent's application and based on its opinion that in view of the fact the Respondent had not graduated from an accredited school of practical nursing, nor did she sit for an examination or complete the equivalent of a course curriculum in an accredited school of professional nursing, all of which is required by Florida Statutes s. 464.111(3)(4) and 464.121(2), I am constrained to sustain to enter a recommendation sustaining the agency action.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

6. The parties were noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

7. The authority of the Board is derived from Chapter 464, Florida Statutes.

8. Competent and substantial evidence was offered to sustain the action of the agency in denying licensure to the Respondent, Modesta Rivera Hernandez, as a Licensed Practical Nurse by waiver (endorsement).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, I hereby recommend that the action of the agency in denying licensure to the Respondent as a Licensed Practical Nurse be sustained.

ENTERED this 22nd day of September, 1978 in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1010 Blackstone Building Jacksonville, Florida

Modesta R. Hernandez 1440 Killarney Drive

Sebring, Florida 33870

Ms. Geraldine B. Johnson Investigation & Licensing Coordinator Florida State Board of Nursing Department of Professional

and Occupational Regulation 6501 Arlington Expressway

Jacksonville, Florida 32211

Docket for Case No: 78-000977

Orders for Case No: 78-000977