STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1337

)

KAREN J. WORKMAN OLIFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 6, 1978, in Room 103 of the Collins Building, Tallahassee, Florida, commencing at 10:00 a.m.

APPEARANCES

For Petitioner: Julius Finegold

1107 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Judson M. Chapman

Horne, Rhodes, Jaffry, Stephens, Bryant, Horne and Chapman

Post Office Drawer 1140 Tallahassee, Florida 32302

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. In mid-January of 1978, the Bureau of Records Administration of the Department of Professional and Occupational Regulation mailed some 90,000 notices of license renewal to nurses currently licensed in the State. These notices contain the information that the nurses' current license expires on March 31, 1978, that failure by the licensee to renew before the expiration date automatically terminates the license, and that the license may be reinstated upon the payment of a fee and evidence that the licensee meets the current standards for practice. The notice further states that the current qualifications include the completion of high school or its equivalent.

   
   

2. When the renewal cards and fees were returned to the Bureau of Records Administration, if postmarked on or before March 31, 1978, the Bureau mailed to each individual a renewal certificate for the year commencing on April 1, 1978. Processing time by the Bureau was generally two weeks, though it could take from four to six weeks. After the close of the renewal period, a lapse list was prepared and sent to the Board of Nursing to indicate those individuals who had

   not renewed their licenses. In 1978, some 4,000 to 5,000 names were on the lapse list. The only acceptable proofs of timely payment of the $6.00 renewal fee was actual receipt of the fee in the Bureau's office, signed certified mail, postmarks bearing a date of March 31st or before, or the tendering of cancelled checks.

   
   

3. An application and notice of renewal was mailed to respondent Oliff, who has been a licensed practical nurse since 1968. A renewal certificate was not issued to her by the Bureau because the Bureau did not receive the $6.00 fee. The Bureau prepared and forwarded to the Board of Nursing a lapse card indicating respondent's failure to renew her license. Had the Bureau received respondent's renewal application and fee, it would have issued a renewal certificate to her.

   
   

4. Respondent Oliff received the renewal notice and information from the Bureau. She was aware that her LPN license expired on March 31, 1978, and that her failure to renew the same would terminate her license. She was also aware that if her license were terminated, she would have to apply for reinstatement or reregistration with the requirement that she meet current qualifications, among which was the completion of high school or its equivalent. Ms. Oliff did not then and does not now possess this qualification. Nursing is the respondent's sole means of support, and she is also responsible for the support of her retarded daughter, a grandchild and her mother.

   
   

5. It was Ms. Oliff's testimony that, on or about February 12, 1978, she wrote a $6.00 check made payable to the Board of Nursing, placed the check in the return envelope which was provided in the renewal notice and placed the stamped envelope in the United States mail. This testimony is substantiated by a copy of respondent's check register and by the testimony of Ms. Frances Fisher, a friend who was with respondent when she prepared the envelope and when she took it to the post office in St. Petersburg.

   
   

6. Respondent Oliff did not become particularly concerned when she did not receive her renewal certificate before March 31, 1978, because in two previous years she had not received her renewed license. On those occasions, she had been able to obtain her license by showing the cancelled checks.

   
   

7. Respondent came to Tallahassee on the evening of March 31, 1978, on other business. On the first working day thereafter, April 3, 1978, she went to the Department of Professional and Occupational Regulation and inquired about her license. It was at this time that respondent learned that her license had been terminated because the Department had not received her check or renewal form. Respondent tendered a $6.00 check to the Board of Nursing. This check was returned to her with the explanation that her license could not be renewed for $6.00. She was advised to place a tracer on her original renewal application and check and was informed that if she provided proof of the proper postmark or of a cancelled check, the renewal would be issued. A tracer or mail nondelivery report was placed by respondent with the U.S. Postal Service. Respondent was advised that the Postal Service was unable to locate the letter.

   
   

8. Respondent applied for reinstatement. This was denied by the Board of Nursing on the grounds that respondent did not meet the current qualifications for a licensed practical nurse; to wit: the completion of an approved four year high school course of study or equivalent thereof.

   CONCLUSIONS OF LAW

   
   

9. Florida Statutes, Section 464.151(1)(b) and (c) provide as follows:

   
   

   1. Failure by the licensee to renew the license before the expiration date shall automatically terminate the license, except as hereinafter specifically provided in this section and in s. 464.21.

   2. Any licensee who allows the license to terminate by failing to renew as provided

      herein may be reinstated by providing evidence satisfactory to the board that the licensee meets the current standards for practice as defined in this chapter and upon payment of

      a fee of $30 for a registered professional nurse and $20 for a licensed practical nurse.

      
      

      Among the current qualifications for a license to practice as a licensed practical nurse is the completion of at least an approved four-year high school course of study, or the equivalent thereof as determined by the Board of Nursing. F.S. Section 464.111(1).

      
      

10. The evidence is clear and undisputed that respondent is not in compliance with the current educational standards for a licensed practical nurse. Therefore, the Board's action in denying her application for reinstatement is justified and correct.

    
    

11. The Board further contends that although respondent's renewal certificate would have been issued had respondent's application and fee therefor been timely received, the Board is bound by F.S. Section 464.151(1)(c) and has no discretion to issue the renewal license absent such receipt. This contention is not in harmony with the testimony adduced at the hearing that the Board does have such discretion in at least two instances. In one instance, cancelled checks may be submitted to prove receipt. In the other, a prior postmark or certified mail receipt can be utilized to prove mailing before the March 31st deadline, even though actual receipt occurs thereafter.

    
    

12. In this proceeding, the testimony of respondent and her friend, as well as her check book notation or register, illustrates that respondent did place in the mail prior to March 31, 1978, her application and fee for a renewal certificate. The fact that she did not inquire as to her status prior to March 31, 1978, is consistent with her prior experience and the testimony that it often took four to six weeks to process the renewal certificates. Had the Board timely received the application and a fee for renewal, respondent's license would have been automatically renewed. To deprive the respondent of her livelihood on the sole ground that the Board lacks any discretion under F.S. Section 464.151(1)(c) would be a travesty where, as here, the respondent has adequately demonstrated that she timely mailed her application and fee for renewal. Having proved timely compliance, respondent should be permitted to renew her practical nursing license upon the payment of the $6.00 fee and completion of the application.

RECOMMENDATION

Based upon the above findings of fact and conclusions of law, it is recommended that:

1. The Board of Nursing deny respondent's reinstatement application for failure to meet current standards for practice; and

   
   

2. The Board of Nursing issue a renewal license for 1978-79 to the respondent upon the respondent's tender of the renewal fee and completed application.

Respectfully submitted and entered this 29th day of November, 1978.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida (904) 488-9675

COPIES FURNISHED:

Judson M. Chapman

Horne, Rhodes, Jaffry, Stephens, Bryant, Horne and Chapman

Post Office Drawer 1140 Tallahassee, Florida 32302

Julius Finegold

1107 Blackstone Building

Jacksonville, Florida 32202

Geraldine Johnson State Board of Nursing

6501 Arlington Expressway - Bldg B Jacksonville, Florida 32211

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE FLORIDA STATE BOARD OF NURSING

IN THE MATTER OF:

Karen J. Workman Oliff

P.O. Box 3121 CASE NO. 78-1337 St. Petersburg, Florida 33731

As a Licensed Practical Nurse License Number 20183-1 (Terminated)

/

ORDER

This matter came on for final action by the Florida State Board of Nursing on the 12th day of December, 1978, at the Langford Resort Hotel, Corner of New England and Interlachen, Winter Park, Florida 32789.

The Board having reviewed the entire record, including all pleadings, exhibits admitted into evidence, the transcript of hearing proceedings, the Recommended Order of the Hearing Officer, adopts the Findings of Fact of the Hearing Officer except for the finding that Respondent's testimony of mailing was substantiated by her friend Frances Fisher. Mrs. Fisher's testimony of the sequence of events leading up to the mailing is in conflict with that of the Respondent (see pgs. 73 and 87 of the transcript). The Board concludes as a matter of law that Respondent's license was automatically terminated by failure to timely renew and that Respondent is not eligible for re-registration of her terminated license due to not having completed an approved four year high school course of study or the equivalent thereof, THEREFORE IT IS:

ORDERED AND ADJUDGED that the licensed practical nurse license of the Karen

J. Workman Oliff, denied until the Respondent provides evidence to the Board of graduation from a four year high school course of study or equivalent thereof.

DONE AND ORDERED this 18th day of December, 1978, at Jacksonville, Florida.

FLORIDA STATE BOARD OF NURSING BY:

Dorothy C. Stratton, R.N.

President

BOARD SEAL

COPIES FURNISHED:

Karen J. Workman Oliff Post Office Box 3121

St. Petersburg, Florida 33731

Judson M. Chapman, Esquire Horne, Rhodes, Jaffry, Stephens Bryant, Horne and Chapman

Post Office Drawer 1140 Tallahassee, Florida 32302

Julius Finegold, Esquire Attorney for the Board

Docket for Case No: 78-001337

Orders for Case No: 78-001337