STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2772

)

KATHLEEN WURSTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on December 5, 1984, at St. Petersburg, Florida.

APPEARANCES

For Petitioner: Joseph L. Shields, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Kathleen Wurster, pro se

7600 16th Avenue, North

St. Petersburg, Florida 33710

By Administrative Complaint filed November 18, 1983, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Kathleen Wurster, Respondent, as a licensed practical nurse. As grounds therefor, it is alleged that on or about January 14, 1983, Respondent, made false representations on an application for employment as a nurse in violation of Section 464.018(1)(j), Florida Statutes, and Rule 210- 10.05(2)(d), Florida Administrative Code.

At the hearing Petitioner called three witnesses, including the Respondent, and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. Kathleen T. Wurster, Respondent, is licensed as a practical nurse by the Florida Board of Nursing and was so licensed at all times relevant hereto.

   
   

2. Pursuant to a Stipulated Settlement Agreement, accepted by the Board of Nursing on April 18, 1983, Respondent's license was placed on probation for a period of two years upon condition that Respondent agreed to random blood and/or urine screens, that Respondent submit copies of all periodic employee evaluation reports to the Board, and that Respondent keep the Board apprised of her address.

3. The events leading up to Respondent being placed on probation occurred while she was working at Greenbrook Nursing Center. At the time she was not an employee of Greenbrook Nursing Center but was employed by an independent contractor who supplied personnel to the nursing center. Whether this independent contractor was Dunbar is not clear from the evidence presented. Since Exhibit 3 shows Respondent started working for Nursefinders in February, 1982, she obviously was not employed by Nursefinders while working at Greenbrook Nursing Center.

   
   

4. On January 14, 1983, Respondent was working at University General Hospital as an employee of Nursefinders, an independent contractor who supplies nursing personnel to organizations needing help on a part-time basis. While so working she filled out an application for employment at University General Hospital (Exhibit 3). Under Employment History, the first (most recent) block for name of employer was left blank. The second block was completed showing employment with Nursefinders from 2/82 until 1/83. Respondent's testimony that she was told by her supervisor at University General to leave this first block of employment history blank was not rebutted. Nor was her testimony that the reason told to her for leaving this block blank was because the hospital might have to pay compensation to Nursefinders if she was employed by the hospital while still working for Nursefinders.

   
   

5. In the application for employment, Exhibit 3, Respondent did not include Greenbrook Nursing Center as a prior employer. Exhibit 3 does not show Respondent employed by a medical facility or agency during the period between June 2, 1980, when she left Bayfront Medical Center and February, 1982, when she was employed by Nursefinders.

   
   

6. Respondent's application for employment (Exhibit 3) was completed before she signed the settlement agreement (Exhibit 2) and before the order was entered accepting the Stipulated Settlement Agreement.

   
   

7. While working at University General Hospital, Respondent told her supervisor that she was on probation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. Section 464.018(1), Florida Statutes, provides, inter alia, the following acts shall be grounds for disciplinary action:

   
   

   (j) Willfully or repeatedly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply

   with a lawfully issued subpoena of the department.

   
   

10. Rule 210-10.05(1), Florida Administrative Code, establishes disciplinary guidelines and provides the Board of Nursing may impose disciplinary action upon any licensee who

    
    

    (d) Has falsely misrepresented the facts . . . on applications for employment as a nurse. . .

11. If a violation of these provisions occurred, it certainly was not a repeated violation and that leaves the requirement of a willful violation before an offense can be found.

    
    

12. The only evidence presented with respect to this allegedly fraudulent application is Exhibit 3 and the testimony of Respondent. Exhibit 3 shows that from 2/82 until 1/83 Respondent worked for Nursefinders. She completed the application which forms the gravamen of the charges here under consideration on January 15, 1983. Respondent testified that she was working for Nursefinders when she prepared Exhibit 3. No misrepresentation is evident because the first block showing former employers was left blank. The most that can be said is that Respondent put in the second block what should properly have been entered in the first block on the application.

    
    

13. Respondent is alleged to have violated the rule above-cited by willful failure to disclose her prior employment at Greenbrook. Since she was never an employee of Greenbrook Nursing Center, it is not clear that Greenbrook Nursing Center would properly have been included as a former employer. In any event, failure to include Greenbrook Nursing Center as an employer under these circumstances does not constitute a willful misrepresentation of facts on the employment application.

    
    

14. Here, the burden is on Petitioner to prove, by clear and convincing evidence, that Respondent willfully misrepresented facts on her application for employment as a licensed practical nurse on January 15, 1983, when she submitted an application for employment to University General Hospital. This, Petitioner has failed to do.

    
    

15. From the foregoing, it is concluded Petitioner has failed to prove, by any standard of proof, that Respondent willfully misrepresented facts on the employment application submitted to University General Hospital on January 15, 1983. It is

RECOMMENDED that the Administrative Complaint filed November 18, 1983, against Kathleen Wurster be dismissed and this case closed.

ENTERED this 19th day of December, 1984, at Tallahassee, Florida.

K. N. AYERS, 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 19th day of December, 1984.

COPIES FURNISHED:

Joseph L. Shields, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Kathleen Wurster

7600 16th Avenue, North

St. Petersburg, Florida 33710

Helen P. Keefe, Exec. Director Board of Nursing

Department of Professional Regulation

111 East Coastline Drive, Room 504 Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-002772

Orders for Case No: 84-002772