STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 24, 2008, in Tampa, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Maria C. Melegrito, pro se

3137 Honeymoon Lane

Holiday, Florida 34691

For Respondent: Gerald D. Siebens, Esquire

Office of the Attorney General One Mack Center

501 East Kennedy Boulevard Tampa, Florida 33602

Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner’s application for licensure as a registered nurse should be granted.

PRELIMINARY STATEMENT

Petitioner, Maria C. Melegrito (Ms. Melegrito), applied to Respondent, Board of Nursing (Board), for licensure by examination as a registered nurse. By Notice of Intent to Deny filed August 29, 2006, the Board denied Ms. Melegrito’s application, stating that Ms. Melegrito was “guilty of violating Sections 464.018(1)(b) and (c), Florida Statutes.” Through counsel, Ms. Melegrito requested an administrative hearing by petition dated September 21, 2006.

By letter dated September 12, 2007, counsel for

Ms. Melegrito advised the Board that he was withdrawing from the case. By letter dated October 16, 2007, Ms. Melegrito advised the Board that she still wished to have an administrative hearing.

On November 21, 2007, the Board forwarded the request to the Division of Administrative Hearings for an assignment of an Administrative Law Judge to conduct the final hearing.

At the final hearing, Ms. Melegrito testified in her own behalf. She did not submit any exhibits for submission in evidence. The Board did not present any witnesses, but did

submit Respondent’s Exhibits 1 and 2, which were admitted in evidence.

The one-volume Transcript was filed on March 4, 2008. The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. The Department filed its Proposed Recommended Order on March 6, 2008. Ms. Melegrito did not file a proposed recommended order.

FINDINGS OF FACT

1. On or about December 6, 1988, Ms. Melegrito was convicted of two counts of fraud in violation of 42 U.S.C. Section 1395 and 18 U.S.C. Section 1341 in the United States District Court for the Western District of Virginia. On or about January 6, 1989, Ms. Melegrito was convicted of four counts of Medicaid fraud in violation of Sections 32.1-314 and 18.2-95 of the Code of Virginia. Both convictions involved the same set of facts.

2. On or about August 3, 1989, the Florida Department of Professional Regulation and/or the Board filed an Administrative Complaint, Case No. 0107472 against Ms. Melegrito’s license as a registered nurse, charging a violation of Subsection 464.018(1)(c), Florida Statutes (1988), for the convictions set forth in paragraph one above.

3. On or about October 27, 1989, the Virginia Board of Nursing revoked Ms. Melegrito’s nursing license as a result of the convictions set forth in paragraph 1 above.

4. On or about December 21, 1990, the Board filed its Final Order in Case No. 0107472, placing Ms. Melegrito’s license on probation for a term concurrent with the probation imposed by the federal court and requiring her to comply with the terms of her federal probation.

5. On or about June 25, 1993, Ms. Melegrito’s license to practice nursing in New York was revoked.

6. On or about July 19, 1994, the Florida Department of Business and Professional Regulation and/or the Board filed an Administrative Complaint against Ms. Melegrito’s license in Case No. 92-11440, alleging a violation of Subsection 464.018(1)(h), Florida Statutes (1994), for unprofessional conduct including a departure from or failure to conform to the minimal standards of acceptable nursing practice.

7. On or about September 14, 1994, Ms. Melegrito was found guilty of violating federal probation and sentenced to four years in the custody of the Federal Bureau of Prisons.

   Ms. Melegrito failed to make restitution as required by the terms of her probation.

8. On or about November 28, 1995, the Division of Administrative Hearings issued a Recommended Order in Case No.

   92-11440, finding that Ms. Melegrito violated Subsection 464.018(1)(h), Florida Statutes, and recommending suspension for three years followed by three years of probation and a $1,000.00 fine. On or about April 30, 1996, the Board filed a Final Order in Case No. 92-11440, imposing suspension for three years followed by three years of probation and a $1,000.00 fine.

9. On or about December 13, 1996, the Agency for Health Care Administration and/or the Board filed an Administrative Complaint, Case No. 95-00886, against Ms. Melegrito’s license, charging Ms. Melegrito with a violation of Subsection 464.018(1)(l), Florida Statutes, for violating the Final Order in Case No. 0107472 by violating the terms of the federal probation.

10. On or about September 4, 1998, the Board filed a Final Order in Case No. 95-00886, revoking Ms. Melegrito’s license for seven years. If Ms. Melegrito desired to reapply for licensure at the end of her revocation period, she was required to demonstrate her safety to practice as well as proof of completing continuing education courses and paying a $250.00 fine and $251.12 in costs.

11. On or about February 24, 1999, Ms. Melegrito was convicted of felony criminal mischief and trespass in the Eighteenth Judicial Circuit in Broward County, Florida.

12. On or about August 18, 2000; July 27, 2001; and December 9, 2004, the Virginia Board of Nursing denied

    Ms. Melegrito’s petitions for reinstatement of her nursing license. The denial by the Virginia Board of Nursing in 2004 was based in part on Ms. Melegrito’s misrepresentations concerning her licensure status at two job interviews, engaging in the unlicensed practice of nursing in 2003, and misrepresentations on her application for reinstatement by failing to disclose her previous disciplinary history and criminal history.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

14. As the applicant, Ms. Melegrito has the burden to establish that she should be granted a license. See Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

15. In its Notice of Intent to Deny, the Board based its denial on violations of Subsection 464.018(1)(b) and 464.018(1)(c), Florida Statutes (2006), which provide that the following are grounds for disciplinary action:

    1. Having a license to practice nursing revoked, suspended, or otherwise acted against, including the denial of licensure,

       by the licensing authority of another state, territory, or country.

       
       

    2. Being convicted or found guilty of, or entering into a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing.

       
       

16. The evidence presented established that Ms. Melegrito has been convicted of Medicaid fraud, a crime which directly relates to the practice of nursing. Ms. Melegrito’s license to practice nursing has been revoked by the states of Virginia and New York. The State of Virginia denied Ms. Melegrito’s application of reinstatement of her nursing license in 2000, 2001, and 2004. These incidents are grounds for denial of

    Ms. Melegrito’s application for licensure as a registered nurse pursuant to Subsections 464.018(1)(b) and 464.018(1)(c), Florida Statutes (2006).

17. Ms. Melegrito has failed to establish that her application for licensure as a registered nurse should be granted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying

Ms. Melegrito’s application for licensure as a registered nurse.

DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2008.

COPIES FURNISHED:

Gerald D. Siebens, Esquire Office of the Attorney General One Mack Center

501 East Kennedy Boulevard Tampa, Florida 33602

Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Maria C. Melegrito 3137 Honeymoon Lane

Holiday, Florida 34691

Josefina M. Tamayo, General Counsel Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

Rick Garcia, MS, RN, CCM, Executive Director

Board of Nursing Department of Health

4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701

Patricia Dittman, Ph.D(C), RN, CDE, Board Chair

Board of Nursing Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 07-005369

Orders for Case No: 07-005369