STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN MARY McKAY )

)

Petitioner, )

)

vs. ) CASE NO. 81-2447

) THE DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on February 8, 1982, in Jacksonville, Florida.

APPEARANCES

For Petitioner: J. Clark Hamilton, Jr., Esquire

801 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

For Respondent: Percy W. Mallison, Jr., Esquire

Assistant Attorney General The Capitol, Room 1601 Tallahassee, Florida 32301

BACKGROUND

On January 19, 1981, Petitioner, Ann Mary McKay, filed an application with Respondent, Department of Professional Regulation, Board of Nursing, seeking permission to take the examination for licensure as a licensed practical nurse. On August 26, 1981, Respondent advised Petitioner her application for licensure by examination had been denied on the ground she had ".. attempted to obtain a license by fraudulent misrepresentation..." in violation of Section 464.018, Florida Statutes. Specifically, Respondent contended her denying that she had ever been arrested or convicted for an offense other than a minor traffic violation was a fraudulent misrepresentation since she had been "arrested and convicted on at least four occasions."

Thereafter, Petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of her application. The matter was referred to the Division of Administrative Hearings by Respondent on September 29, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated November 5, 1981, the final hearing was scheduled for January 11, 1982, in Jacksonville, Florida.

At the final hearing, neither Petitioner nor her original counsel appeared.

On January 19, 1982, a Motion for Hearing was filed by Petitioner's substitute counsel alleging that she was unaware of the hearing date, and had not been so advised by her original attorney. The motion was deemed to be meritorious and the final hearing was rescheduled for February 8, 1982, in Jacksonville, Florida.

At the final hearing Petitioner testified on her own behalf. By stipulation of the parties, Hearing Officer Composite exhibit 1 was received into evidence. That exhibit consists of certified records from the Duval County Sheriff and Duval County Circuit Court.

A transcript of the hearing was filed on February 15, 1982. Proposed findings of fact and conclusions of law were filed by Petitioner and Respondent on February 24 and 25, 1982, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Petitioner's application for licensure by examination as a licensed practical nurse should be granted.

Based upon a review of the entire record, the following findings of fact are determined:

1. Petitioner, Ann Mary McKay, filed an application for licensure by examination as a licensed practical nurse with Respondent, Department of Professional Regulation, Board of Nursing, on January 19, 1981. The application was dated January 16, 1981.

   
   

2. Question 11 on the application asks whether the applicant has "...ever been arrested or convicted for an offense other than a minor traffic violation." Petitioner marked the answer "no".

   
   

3. After reviewing the application, the Board authorized McKay to take the April, 1981, examination in Jacksonville, Florida. She did not receive a passing grade. McKay made application for reexamination on June 3, 1981, to take the October, 1981, examination. The application for reexamination does not require the detailed information contained in the original application form. It does ask the applicant if he or she has "... been convicted of any offense other than a minor traffic violation since submission of the last application." Petitioner responded that she had not.

   
   

4. On August 26, 1981, Respondent advised Petitioner by letter that "...it has been brought to our attention that you have been arrested and convicted, adjudication withheld, on at least four (4) occasions." McKay was further advised that because she had attempted to obtain a license by "fraudulent misrepresentation", her request to take the examination was being denied. The letter of denial precipitated the instant proceeding.

   
   

5. At the final hearing, it was disclosed that Petitioner had in fact been arrested on December 20, 1972, for shoplifting three pairs of earrings valued at

   $6.00. Adjudication was withheld and Petitioner placed on one year's probation. On August 17, 1977, Petitioner was again arrested for possession of less than 5 grams of marijuana and possession of paraphernalia, both being misdemeanors.

   McKay pleaded guilty to the former charge and paid a $60 fine. The latter

   charge was dismissed. A third arrest occurred on August 7, 1981, when Petitioner was arrested for possession of more than 20 grams of a controlled substance (a felony) for which she served 30 days in the Duval County Jail, paid $300 court costs, was placed on probation for four years, and required to maintain gainful employment. However, adjudication of guilt was withheld.

   
   

6. Petitioner readily acknowledged that the above arrests occurred. She claimed she misunderstood and was confused by the wording in question 11 and believed a "yes" answer was necessary only if she was actually convicted of a crime. Therefore, she believed a negative response to question 11 was appropriate. She stated she did not intend to deceive the Board or misrepresent her past, particularly since the Board had ready access to the court-records. McKay also stated she has a sincere desire to be a nurse and to enter that profession to gain her livelihood.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. Subsection 464.018(1)(a), Florida Statutes, provides in part:

   
   

   1. The following acts shall be grounds for disciplinary action set forth in this section:

      (a) Procuring, attempting to procure,

      or renewing a license to practice nursing by...fraudulent misrepresentations...

      
      

      The Board has denied the application on the ground that Petitioner attempted to procure a license by fraudulent misrepresentation, namely, by failing to disclose that she had been arrested on at least four occasions for offenses other than minor traffic violations.

      
      

9. Petitioner argues that she is entitled to take the examination for two reasons. First, she contends that the response to question 11 did not constitute a "fraudulent misrepresentation" within the meaning of the law, for she misunderstood and was confused by the wording of the question, and did not intend to deceive the Board. Second, McKay argues that under the provisions of Subsection 120.60(2), Florida Statutes, "[e]very application for licensure shall be approved or denied within 90 days after receipt of the original application...," and because the agency did not deny her request until more than seven months had passed, the application, "...shall be deemed approved, and subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued." In brief, the Board responds that the elements necessary to show fraud are present, and that McKay's answer to question 11 constitutes a fraudulent misrepresentation. It also contends that the 90-day statutory period in which to grant or deny the license did not begin to run until the Board received her record of arrests at an undisclosed time prior to the issuance of the letter of denial on August 26, 1981. Finally, the Board points out that Petitioner pled guilty to possession of less than 5 grams of marijuana in 1977, that the plea constitutes a conviction, and that accordingly there is no basis to her claim that she was confused by the wording in question 11.

10. Initially, it should be noted that the Board has conceded that the most recent arrest of McKay in August, 1981, is not pertinent to this proceeding, for it occurred after the original application was filed, as well as the application for reexamination. Accordingly, only the arrests in 1973 and 1977 need be considered. These include (1) a shoplifting arrest for which adjudication was withheld, (2) a plea of guilty to possession of less than 5 grams of marijuana and the imposition of a $60 fine, and (3) an arrest for possession of paraphernalia which was subsequently dismissed.

    
    

11. Subsection 120.60(2), Florida Statutes, provides in part as follows:

    
    

    (2) When an application for a license is

    made as required by law, the agency shall con- duct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and re- quest any additional information the agency is

    permitted by law to-require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial

    of the license unless the agency timely no- tified the applicant within this 30-day period. The agency shall notify the appli- cant if the activity for which he seeks a license is exempt from the licensing require- ment and return any tendered application fee within 30 days after receipt of the original application or within 10 days after receipt of the timely requested additional informa- tion or correction of errors or omissions.

    Every application for license shall be ap- proved or denied within 90 days after receipt of the original application or receipt of

    the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. The 90-day or shorter

    time period shall be tolled by the initiation of a proceeding under s. 120.57 and shall re- sume 10 days after the recommended order is submitted to the agency and the parties. Any application for a license not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved and, subject to the satisfactory completion

    of an examination, if required by a prerequisite to licensure, the license shall be issued.

    Under the terms of the foregoing statute, the agency must notify the applicant within 30 days after receipt of the application of any apparent errors or omissions and make a request for additional information to satisfy those deficiencies. In the event additional information is not requested, the agency must approve or deny the application within 90 days after it is received. If the agency fails to make this determination within the statutory time constraints, the application "shall be deemed approved." Subsection 120.60(2), supra.

    
    

12. Respondent contends that because there were no apparent errors or omissions on the face of the application, it had no reason to initially question the responses of Petitioner. Therefore, it reasons that the 90-day period should not run until McKay's arrest record was uncovered. This contention is unavailing. The statute is controlling and dictates approval of the application for two reasons. First, while the record does not disclose this fact, it is apparent that the Board approved McKay's application to take the examination within 90 days after it was filed, for she was permitted to take the April, 1981, examination. In effect, the Board now seeks to rescind that earlier action, and to withdraw its initial approval. However, the Board has no statutory authority to do so, and it is now bound by its earlier action.

    Second, even if the Board did not officially "approve" McKay's application within the 90-day -statutory period, in the absence of any action the application was deemed to be approved on April 19, 1981, by operation of law. Cf. World Bank v. Lewis, 406 So.2d 541, 543 (Fla. 1st DCA 1981). In reaching this conclusion it should be noted the Board is not without a remedy against McKay if It deems disciplinary action to be appropriate. Section 464.018, Florida Statutes, provides a wide array of grounds for which the Board can seek revocation or suspension of a nursing license, including fraudulent misrepresentation in procuring a license, and conviction of a crime. However, until the examination phase of the licensing process is completed, the Board is without authority to revoke its earlier approval of the application, or to undo the approval mechanism embodied in the law. Therefore, the application for licensure by examination should be granted, and applicant permitted to resume her efforts to pass the examination. 1/

    
    

13. In view of the conclusions reached above, it is unnecessary to reach the issue of whether the response to question 11 constituted a fraudulent misrepresentation within the meaning of the law.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure by examination be

GRANTED and that Ann Mary McKay be authorized to take the licensed practical

nurse examination.

DONE and ENTERED this 9th day of March, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1982.

ENDNOTE

1/ Having concluded that McKay's application should be granted, the question arises as to whether the mechanism in Subsection 120.60(2) authorizes her to take successive examinations without objection by the Board until she receives a passing grade. Unlike certain other professional boards, Chapter 464 and applicable rules do not appear to limit a nursing applicant to a specific number of times in which to pass the examination before a new application must be submitted. If indeed such restrictions exist, and if arguendo McKay did not receive a satisfactory grade within those constraints, her authorization would continue only until a new application was required. At that point the Board could again exercise its authority to grant or deny within ninety days.

Otherwise, as illogical as it seems, McKay should apparently be permitted to continue taking consecutive examinations until she is successful or gives up the undertaking.

COPIES FURNISHED:

J. Clark Hamilton, Jr., Esquire 801 Blacks tone Building

233 East Bay Street Jacksonville, Florida 32202

Percy W. Mallison, Jr., Esquire Department of Legal Affairs

The Capitol - Room 1601 Tallahassee, Florida 32301

Ms. Ann Mary McKay 3719-B Mayflower Street

Jacksonville, Florida 32205

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

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING

ANN MARY McKAY,

Petitioner,

vs. CASE NO. 81-2447

THE DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF NURSING,

Respondent.

/

FINAL ORDER

THIS CAUSE came on for final disposition by the Florida Board of Nursing of the Department of Professional Regulation on April 1, 1982, in Jacksonville, Florida, for the purpose of determining whether the Petitioner's Application for Licensure by Examination should be granted. At the Petitioner's election, a formal hearing was conducted pursuant to Section 120.57(1), F.S., before a Hearing Officer of the Division of Administrative Hearings. The Hearing Officer's Recommended Order was rendered on March 9, 1982. A copy of the Recommended Order is attached hereto and made a part hereof. Written Exceptions to the Hearing Officer's Recommended Order were submitted by the Respondent.

Petitioner did not submit any Exceptions. Petitioner was present at the final hearing in this matter and was represented by counsel, J. Clark Hamilton, Jr. Esquire. Respondent was represented by Percy W. Mallison, Jr., Esquire

FINDINGS OF FACT

Having reviewed the entire record before it, the Board finds that the Findings of Fact as contained in the Hearing Officer's Recommended Order are adequately supported by competent, substantial evidence and hereby adopts those Findings of Fact as its own.

CONCLUSIONS OF LAW

1. Having reviewed the entire record before it and having listened to argument of both parties, the Board adopts as its own Conclusions of Law those Conclusions of Law numbered 1 through 4 in the Recommended Order. The Board expressly rejects, however those Conclusions of Law numbered 5, 6, and 7 in the recommended Order.

   
   

2. Addressing first the issue of whether the Petitioner's conduct in submitting a false application for licensure amounted to fraudulent misrepresentation in attempting to secure a license to practice nursing in violation of Section 464.018(1)(a), F.S., it is concluded that the facts as

   found by the Hearing Officer are sufficient to show that the Petitioner has violated that section. Specifically, the Hearing Officer found that the Petitioner answered "no" to the question which asked whether she had ever been arrested or convicted for an offense more serious than a minor traffic violation. Furthermore, the Hearing Officer expressly noted that the Petitioner readily acknowledged that she had in fact been arrested on several occasions and had pleaded guilty to the charge of possession of less than 5 grams of marijuana, a misdemeanor under Florida law. It should be noted that a plea of guilty is considered a conviction for purposes of Florida law. See State v.

   Gazda, 257 So.2d 242 (Fla. 1971). Thus, it appears that the Petitioner made application for licensure with the intention that her application would be acted on; that the application as submitted was false and she knew it was false when she submitted it; and that the Board, believing the application to be true, permitted the applicant to write the examination for licensure.

   
   

3. The next issue to be addressed is whether Section 120.60(6), F.S., may serve to divest the Board of the authority to deny an application for licensure where the application as submitted is fraudulent but where the misrepresentations are not readily apparent. The Hearing Officer concluded that Section 120.60(6), F.S., must be read to mean that, if an agency has not moved affirmatively to deny an application within 90 days of its receipt (unless, of course, the time limits are tolled when additional information is requested of the applicant), it must be assumed as a matter of law that the application is deemed approved.

   
   

4. The absurdity of such a conclusion is apparent in such a case as that presently before us where the applicant has submitted application under oath that contains material misrepresentations of fact. Assuming the application to be truthful, there are no grounds to deny licensure. Neither are there any apparent errors or omissions which would cause the Department to request corrections or additional information from the applicant. Following the Hearing Officer's rationale, the Board may not rely on the information contained in a application, because--if it does--it runs the risk that the information may be incorrect and, unless the inaccuracies are discovered within 90 days, the Board may not then deny the application. The Board finds that such a requirement is completely unreasonable in view of the thousands of such applications it must process each year.

   
   

5. The Hearing Officer notes that the Board may still issue the license and then institute proceedings to revoke or suspend it. Keeping in mind that the Board's basic, underlying purpose is to regulate the practice of nursing so as to ensure that every nurse practicing in this state meets minimum requirements for safe practice (see Section 464.002, F.S.), the Board rejects this option as impractical. The time to screen unsafe practitioners or unqualified applicants out of the market is before, not after, they are licensed.

   
   

6. Based on the foregoing, it is the Board's conclusion that Section 120.60(6), F.S., does not act to prevent an agency from denying an application for licensure more than 90 days after such application has been received where it is subsequently discovered that the application contains misrepresentations of material fact which are not readily apparent from a review of the application.

   
   

7. The Board further concludes that the Petitioner's Application did contain misrepresentations of material fact and that such misrepresentations were not readily apparent on the face of the Application.

8. Based on the foregoing Findings of Fact and Conclusions of Law, the Board hereby rejects the Hearing Officer's Recommendation and in place thereof imposes the foregoing:

WHEREFORE, based on the foregoing, it is hereby ORDERED AND ADJUDGED that the Application for Licensure of Ann Mary McKay be and is hereby DENIED.

By order of the Florida Board of Nursing, this 20th day of April, 1982.

MARY F. HENRY, Chairman Florida Board of Nursing

Copies furnished to:

J. Clark Hamilton, Jr., Esquire Percy M. Mallison, Jr., Esquire Donald R. Alexander, Esquire

Ann Mary McKay

3719-B Mayflower Street Jacksonville, Florida 32205

Docket for Case No: 81-002447

Orders for Case No: 81-002447