STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAZARO SAAVEDRA, )

)

Petitioner, )

)

vs. ) Case No. 85-4245

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before William R. Dorsey, the Hearing Officer designated by the Division of Administrative Hearings, on January 20, 1986 in Miami, Florida. Proposed findings of fact and conclusions of law were submitted by the Respondent. All proposed findings of fact (1-12) are accepted in this Recommended Order, and are either adopted verbatim or modified for style or accuracy.

APPEARANCES

For Petitioner: Franz Arango, Esquire

1999 Southwest 27th Avenue Miami, Florida 33145

For Respondent: Deborah D. Hart, Esquire

Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

ISSUE

Whether Lazaro Saavedra is eligible for licensure by endorsement as a registered nurse in Florida, as provided in Chapter 464, Florida Statutes, and Chapter 210, Florida Administrative Code?

PRELIMINARY STATEMENT

An application for licensure as a registered nurse by endorsement was received from Petitioner, Lazaro Saavedra on May

18, 1984. Petitioner had previously applied for licensure by examination in 1977 and 1981. These were denied by the Board of Nursing ("Board") on both occasions. Before making the 1984 application, Petitioner received approval from the Board to take a refresher course for nurses at Miami-Dade Community College, and successfully completed it.

The Board adopted an emergency rule, effective May 18, 1984, to the effect that in order to be licensed by endorsement, nurses trained in Cuba must demonstrate that they had obtained Cuban licensure before December 31, 1961. Under this emergency rule, Petitioner would have been ineligible for Florida licensure by endorsement due to his purported Cuban licensure date of June 1963 because in that rule the Board determined that the standards for Cuban licensure in 1963 were not substantially equivalent to Florida's standards. Due to the completion of the refresher course, however, the Board gave Petitioner and others who had taken that course the opportunity to present additional evidence of the equivalency of their Cuban education and of their licensure. Petitioner's evidence was not accepted by the Board, and his application was denied. He subsequently requested a formal hearing, which was referred to the Division of Administrative Hearings.

At hearing, the parties submitted five (5) joint exhibits and Respondent submitted two (2) exhibits.1 Petitioner offered the testimony of Alicia de la Rua, Francisca Garcia, Fermin Bello, Bruno Barreiro, Luis Sabatela, and testified in his own behalf. Respondent offered testimony of Dr. Jeanne Stark and Carolyn Bergeron. The parties stipulated that Petitioner has received a high school diploma, and that he has the ability to communicate in English.

FINDINGS OF FACT

1. Petitioner, Lazaro Saavedra, received his education in Cuba (Tr. 109). There is evidence that he attended medical school for a period of four to five years beginning in 1960 (Tr. 109, 110, 119; JX-4), but he did not complete his medical education (Tr. 109).

   
   

2. Petitioner asserts that he attended nursing school in Cuba from 1959 to 1962 (Tr. 108), and was licensed to practice nursing in Cuba (Tr. 118-119, 125). The record in this cause is devoid of any documentation of Petitioner's nursing education. While a witness apparently had a paper that may have been some sort of copy of Petitioner's nursing degree, it was neither identified for the record or offered into evidence (Tr. 85, ln. 11-15; 86, ln. 2-6). Petitioner attempted to prove his nursing education by his own testimony, but he was unable to describe

   well the content of his nursing program (Tr. 124, ln. 24-25, 125). He was unclear and imprecise regarding the dates of his nursing education and its overlap with his medical education (Tr. 109, 110, 124).

   
   

3. The only testimony Petitioner offered to prove his attendance in nursing school, other than his own, was that of Bruno Barreiro. Mr. Barreiro knew Petitioner to be a nursing student (Tr. 91). He later saw Petitioner on "rounds" at a hospital (Tr. 92), but stated that medical students and nursing students took rounds together (Tr. 99). The witness expressed no knowledge of Petitioner as a graduate or as a practicing licensed nurse (Tr. 91, 98).

   
   

4. Petitioner attempted to prove his nursing education and licensure in Cuba by the testimony of witnesses who "knew him as a nurse" in Cuba. Alicia de la Rua is a Florida licensed nurse who worked in the same hospital as Petitioner in Cuba for three months in 1964 (Tr. 55, 56, 59). They did not work together (Tr. 59), but were on the same ward in separate men's and women's sections (Tr. 61). Ms. de la Rua never saw Petitioner's nursing diploma or license (Tr. 60) and has no personal knowledge that he attended nursing school in Cuba (Tr. 61). She did see him dressed as a nurse and acting as a nurse in the principal hospital in Matanzas, Cuba (Tr. 55, 61-62).

   
   

5. Francisca Garcia is licensed as a nurse in Florida. She met Petitioner in 1965 or 1966 in the clinic Petitioner's father and brother, who were medical doctors, operated in Havana (Tr. 69, 91, 118-119). Petitioner treated Ms. Garcia's nephew by giving him a vaccination (Tr. 70). In Cuba that treatment could have been performed by someone with a medical education or even a nurse's aide (Tr. 70). Although Ms. Garcia states that she saw Petitioner's diploma or license at the clinic (Tr. 65, ln. 9-15), no such document has been offered in this proceeding, and her testimony about the diploma is not persuasive due to Petitioner's failure to offer any copy of the degree for admission into evidence, although a copy was apparently available at the hearing. See Finding of Fact 2, above.

   
   

6. Petitioner first sought licensure in Florida in 1977 (JX-4). The basis for that application was his incomplete

   medical education, and the application was denied (Tr. 111, 117). On that application, Petitioner did not indicate any nursing education, either under "Official Name of Nursing Program" (JX-4, ln. 8) or under a question regarding receipt of nursing education in another country (JX-4, ln. 10). The latter question was left blank; all other questions on the application were answered (JX- 4), including that Petitioner had not written a nursing licensing examination before.

7. Petitioner again applied for licensure by examination in 1981 (JX-5). On the 1981 application, Petitioner did refer to his nursing education, but in vague terms, giving the Official Name of Nursing Program as "Registered Nurse" (JX-5, ln. 8).

   This application also contains the false statement that Petitioner had never before made application for licensure in Florida (JX-5, ln. 9), and the statement that he had not written a nursing licensing examination before.

   
   

8. Petitioner applied for licensure a third time, this time by endorsement rather than by examination, in an application received by the Board on May 18, 1984 (JX-3). This application contains several false statements or omissions. Petitioner again failed to advise the Board of his previous applications (JX-I, section 4E). Petitioner stated that he had never held a license to practice nursing in another country (JX-3, section 4F). Petitioner again stated that he had never written a nursing licensure examination in Florida or any other state or country (JX-3, section 6A). Petitioner made a further false answer to the question "Have you ever been denied a license to practice nursing in Florida . . .?" (JX-3, section 6D). Truthful answers to these questions are necessary so that the Board and its staff may review sufficiently and evaluate an application, taking into consideration any previous Board actions (Tr. 146, 147).

   
   

9. To prove eligibility for licensure by endorsement, an applicant who was educated and licensed in Cuba before a prescribed date must demonstrate that licensure by means of official documents (Tr. 140). If original documents are unavailable, as is often the case with Cuban nurses (Tr. 98), the Board requires some other competent, substantial proof, including affidavits of other nurses or doctors licensed both in Cuba and in Florida (Tr. 140, 149). Those affidavits must be consistent with other information received by the Board concerning the applicant's qualifications (Tr. 149).

   
   

10. The Board amended its rules by emergency rule effective May 18, 1984 (RX-1), to provide that nurses licensed in Cuba prior to December 31, 1961, would be eligible for licensure by endorsement upon successful completion of a refresher course (Tr. 142, 143). Although Petitioner purportedly graduated from nursing school after that date, the Board reconsidered his application because he had been approved to begin and had completed the refresher course at Miami-Dade Community College before the effective date of the emergency rule (Tr. 144, 145).

    
    

11. Petitioner completed the variable time nursing refresher program at Miami-Dade (Tr. 46; JX-2), which was a 16- week course designed for people who had never taken a licensing

    examination (Tr. 45, ln. 9-14). This program contained no clinical component or direct patient care (Tr. 46, 47). According to the dean of the Miami-Dade program, Dr. Jeanne Stark, who also developed the program (Tr. 46, 47), an individual with a medical background but who had not had a nursing education could successfully attend and complete the 16-week variable time refresher program (Tr. 47-50).

    
    

12. Petitioner was approved to take the refresher course by the Board (Tr. 51), prior to his 1984 application, on the basis of affidavits provided by the Cuban Nurses in Exile Association that he was licensed in Cuba (Tr. 141, 142). Those affidavits are no longer relied on by the Board as proof of licensure because of inconsistencies and inaccuracies in them (Tr. 141, 144).

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes (1985).

    
    

14. The burden of showing eligibility for licensure is on the applicant. Rule 28-6.08(3), Florida Administrative Code, and J.W.C. Company, Inc., v. Department of Transportation, 396 So. 2d 778 (Fla. 1st DCA 1981). On the basis of the foregoing facts, the Petitioner has failed to meet his burden of proof.

    
    

15. The practice of nursing is governed by Chapter 464, Florida Statutes (1983). The stated purpose for the regulation of nursing practice is found in Section 464.002, Florida Statutes (1983):

    
    

    The sole legislative purpose in enacting this chapter is to ensure that every nurse practicing in this state meet minimum requirements for safe practice. It is the legislative intent that nurses who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

    
    

16. Petitioner seeks licensure by endorsement, which is governed by Section 464.009, Florida Statutes (1983):

    
    

    1. The department shall issue the appropriate license by endorsement to practice professional or practical nursing to an applicant who, upon applying to the

       department and remitting a fee set by the board not to exceed Sloo, demonstrates to the board that he:

       
       

       1. Holds a valid license to practice professional or practical nursing in another state of the United States, provided that when the applicant secured his original license, the requirements for licensure were substantially equivalent to or more stringent than those existing in Florida at that time; or

          
          

       2. Meets the qualifications for licensure in Section 464.008 and has successfully completed a state, regional, or national examination which is substantially equivalent to or more stringent than the examination given by the department.

          
          

          Because Petitioner does not hold a license in another state, he must qualify pursuant to paragraph (b) above. Section 464.008(1)(b), Florida Statutes (1983), requires, in essence, graduation from an approved nursing program. Consequently, a foreign nursing graduate must have completed an approved nursing program, and have taken an examination substantially equivalent to that given in Florida.

          
          

17. The Board has clarified these statutory requirements in its rules, most specifically with regard to Cuban nurses. Rule 210-8.26(5), Florida Administrative Code, provides:

    
    

    A person licensed in the Republic of Cuba prior to December 31, 1961, shall be presumed to have successfully completed an examination equivalent to the one given in Florida, and shall be eligible for licensure by endorsement when he or she has successfully completed a program which is given in an institution of higher learning, is intended to assure current competency of the applicant, and is approved by the Board.

    
    

    The Board changed the relevant date from June 17, 1968 to the current date of December 31, 1961, by the emergency rule which became effective on May 18, 1984. Amendment of the rule in the usual way followed, and became fully effective July 3, 1984. As a consequence of the amendment, the pertinent inquiry is whether the applicant was licensed in Cuba, and if 60, on what date?

18. Petitioner has offered no documentary evidence of licensure in Cuba. He seeks to prove his licensure by the testimony of other nurses who did not directly work with him, or observed him performing functions which concededly could have been performed in his capacity as a medical student or even a nurse's aide. This evidence does not support the conclusion that Petitioner was licensed as a nurse in Cuba.

    
    

19. It has been determined that the Board of Medical Examiners may look behind a medical degree in order to determine if the applicant has, in fact, received a medical education. See Newcomer v. Board of Medical Examiners, 7 FALR 5224, 5233 (Fla. Bd. of Medical Examiners 1985). Similarly, the Board of Nursing may look behind purported foreign licensure to determine the content of an applicant's education. This conclusion is consistent with Section 464.009(1)(b), Florida Statutes (1983), as well.

    
    

20. Petitioner's testimony regarding his nursing education is somewhat vague at best. He has no documentation of any nursing education. He cannot remember many courses that he took. He was in medical school at the same time, and yet is unclear of specific dates. One witness testified he knew Petitioner to have been in nursing school, but offered no testimony regarding Petitioner's completion of the program. Indeed, Petitioner himself did not indicate any nursing education at all on his first application to the Board, but attempted to obtain licensure based on his medical education. An inference of completion of a nursing program cannot be drawn from his completion of the Miami- Dade refresher course, because the program's developer testified that an individual with sufficient background but without formal nursing education could pass the refresher course. The conclusion cannot be reached on the evidence presented that Petitioner completed an acceptable nursing program.

    
    

21. Another statutory provision which must be considered is Section 464.018(3), Florida Statutes (1983), which provides in pertinent part:

    
    

    The Board shall not . . . cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that . . . such person is capable of safely engaging in the practice of nursing. When the foregoing is considered in light of the purpose set forth in Section 464.002, Florida Statutes (1983), the Hearing Officer concludes that Petitioner has not offered sufficient evidence that he meets the requirements for licensure and is

    sufficiently trained to safely practice nursing.

    
    

22. Although the foregoing are sufficient grounds for denial of licensure, the record contains additional grounds. Section 464.018(1)(a), Florida Statutes (1983), establishes as one basis for disciplinary action the attempt to procure a license by fraudulent misrepresentations or through error of the Department or Board. Section 464.018(2)(a), Florida Statutes (1983), makes clear that this section is applicable to applicants as well as licensees, because one of the available sanctions is refusal to certify an applicant for licensure. Petitioner made several false statements on his 1984 application, the most serious being those relating to previous applications and previous denials. Petitioner attempted during his testimony to disavow responsibility for those statements by saying someone else filled out the application (Tr. 128-129). Petitioner admits he signed the application and thereby attested to its truth. In light of similar misstatements on his earlier applications, and his testimony that the statements were indeed not true, a pattern of withholding or misrepresenting the facts emerges. The Board may certainly deny an application for an attempt to mislead it Gentile v. Department of Professional Regulation, Board of Medical Examiners, 448 So. 2d 1087 (Fla. 1st DCA 1984).

RECOMMENDATION

Based on the foregoing, it is recommended that the Board of Nursing enter a final order DENYING the application of Lazaro Saavedra for licensure by endorsement.

DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, JR., Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986.

ENDNOTE

1/ References to the transcript, filed February 28, 1986, will be shown as (Tr. ), with reference to specific lines shown as (Tr. , ln. ) where appropriate; joint exhibits will be shown as (JX- ); Respondent's exhibits will be shown as (RX- ).

COPIES FURNISHED:

Ms. Judie Ritter Executive Director Board of Nursing Room 504

111 East Coastline Drive Jacksonville, Florida 32202

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Deborah D. Hart, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

Franz Arango, Esquire 1999 S.W. 27th Avenue Miami, Florida 33145

Docket for Case No: 85-004245

Orders for Case No: 85-004245