STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENITA JEAN-NOEL,

vs.

Petitioner,

Case No. 13-0838

BOARD OF NURSING,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes,1/ before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on May 9, 2013, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: James Jean-Francois, Esquire

Law Offices of James Jean-Francois Suite 211-A

6100 Hollywood Boulevard

Hollywood, Florida 33024

For Respondent: Lee Ann Gustafson, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Respondent should take final action to deny Petitioner's application for licensure as a practical nurse on the grounds set forth in Respondent's Notice of Intent to Deny.

PRELIMINARY STATEMENT

On February 15, 2013, Respondent issued a Notice of Intent to Deny Petitioner's application for licensure as a practical nurse (Notice). In the Notice, Respondent offered the following explanation for its taking such action:

The application for [licensure] was signed on September 5, 2012. The application includes the following question:

Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction, or country?

The applicant answered the question NO. In June 2010, the Colorado Board of Nursing denied the applicant's application for licensure on the grounds that the applicant had submitted fraudulent documentation that she graduated from her practical nursing program.

The applicant is in violation of [s]ections 464.018(1)(a) and (b) and 456.072(1)(f) and (h), Florida Statutes, by having a license to practice nursing or any healthcare related profession acted against by the licensing authority of another jurisdiction, and by attempting to obtain a nursing license by bribery, misrepresentation, or deceit.

Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose conditions, pursuant to [s]ections 464.018(2) and 456.072(2), Florida Statutes.

It is therefore ORDERED that the application for certification is DENIED.

Petitioner subsequently challenged the factual underpinnings of the intended denial of her application. The matter was thereafter referred to DOAH on March 12, 2013, for the assignment of an administrative law judge to conduct an evidentiary hearing on the "disputed issues of fact" raised by Petitioner.

As noted above, the hearing was held on May 9, 2013. Three witnesses testified at the hearing: Dr. Angela Thomas-Dupree, William Spooner, and Petitioner. In addition to the testimony of these three witnesses, four exhibits (Petitioner's Exhibits 1

and 2, and Respondent's Exhibits 1 and 2) were offered and received into evidence.

Following the conclusion of the evidentiary portion of the hearing, the undersigned set the deadline for the filing of proposed recommended orders at ten days from the date of the filing of the transcript of the hearing with DOAH.

The hearing Transcript (consisting of one volume) was filed with DOAH on May 14, 2013. The following day, the undersigned issued a Notice of Filing Transcript advising the parties that

their proposed recommended orders were due no later than May 24, 2013.

Petitioner and Respondent filed their proposed recommended orders on May 22, 2013, and May 28, 2013, respectively.2/ These post-hearing submittals have been carefully considered by the

undersigned.

FINDINGS OF FACT

1. Petitioner is a native of Haiti, where she graduated from the Université d'Etat d'Haiti, l' École Nationale des Infirmières, Haiti's national nursing school, in 1993. Since 1997, she has lived and received mail at a residence in North Miami Beach, Florida, having the following mailing address: 1120 Northeast 155th Street, North Miami Beach (or, alternatively, Miami), Florida 33162 (155th Street Mailing Address).

2. In or about 2006 and 2007, Petitioner attended the Miami Lakes Educational Center's practical nursing program, but she never completed the program.

3. Thereafter, Petitioner enrolled in and later completed (in or about June 2008) a "remedial" program of practical nursing coursework specifically designed for graduates of Haiti's national nursing school. The coursework was given at Miami-Dade College (North), under the directorship of Mariane Barrientos.

   
   

4. On April 23, 2009, Petitioner filed with Respondent an Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (First Florida Application). On the completed application form, in the spaces provided for the applicant to indicate the "Nursing School Attended" and "Additional Nursing Program Attended," she wrote "Universite D'Etat Ecole Nationale Des Infirmières" and "Miami Dade College Remedial Theory & Clinical," respectively.

5. By letter dated April 30, 2009, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the address she gave as her mailing address on her First Florida Application, Respondent advised Petitioner that it had received her First Florida Application and, upon review, had determined it to be "incomplete" because the following requirements had not been met:

   Graduates of schools outside the United States must have credentials evaluated by a Board approved credentialing service. . . .

   Evaluation results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable.

   
   

   Graduates of schools outside the United States must provide proof of Board approved English competency. . . . Results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable.

   
   

   After having received this letter, as well as follow-up written correspondence from Respondent dated August 12, 2009, also

   
   

   addressed to Petitioner's 155th Street Mailing Address (with "Miami" designated as the city), Petitioner withdrew her First Florida Application by completing a Respondent-created form (on which she gave her address as "1120 NE 155 St Miami Fl 33162") and submitting it to Respondent on October 27, 2009.

6. Approximately two months later, in or around December 2009, Petitioner submitted an Application for License by Examination: Practical Nurse, to the Colorado Board of

   Nursing (Colorado Application). The application was accompanied by a money order (in the amount of $88.00) Petitioner had obtained to pay for the application fee.

7. On the completed application form, under "Name of Professional Nursing Program Attended," "Miami Lakes Educational Center" was written; in the space provided for the applicant to indicate the "Date of Graduation," it was claimed, falsely, that Petitioner had graduated from this "[p]rofessional [n]ursing [p]rogram" in June 2009; and Petitioner gave her 155th Street Mailing Address (with "Miami" designated as the city) as her mailing address.

8. At the end of the form was the following "Attestation," which Petitioner signed and dated on December 14, 2009:

   I state under penalty of perjury in the second degree, as defined in 18-8-503, C.R.S., that the information contained in this application is true and correct to the best of my knowledge. In accordance with 18-

   
   

   8-501(2)(a)(1), C.R.S. false statements made herein are punishable by law and may constitute violation of the practice act.

   
   

9. In support of the Colorado Application, the Colorado Board of Nursing received a fraudulent Miami Lakes Education Center transcript showing, falsely, that Petitioner had completed the nursing program at the school on June 29, 2009. The transcript purported to be signed (on December 11, 2009) by

   Dr. Angela Thomas-Dupree, who was an administrator at the Miami Lakes Education Center at the time. In fact, the signature on the transcript was a forgery: it was not Dr. Thomas-Dupree's, and she had not authorized anyone to sign her name on any transcript issued by the Miami Lakes Education Center.3/

10. In response to the Colorado Board of Nursing's request that she "verify [the] transcript" it had received (a copy of which the Board sent to her), Dr. Thomas-Dupree advised the Board, in writing (through a memorandum dated March 16, 2010), that (contrary to what the transcript indicated) Petitioner "[a]ttended [but] did not complete" the nursing program at the Miami Lakes Education Center.

11. Thereafter, the Colorado Board of Nursing made its determination to deny Petitioner's Colorado Application on the ground that she had "attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact" in violation of Colorado law.4/

    
    

12. By letter dated June 25, 2010, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the Colorado Board of Nursing advised Petitioner that a decision had been made to "deny [her] request for a license." The body of the letter read as follows:

    Panel B of the State Board of Nursing ("Board") reviewed your application for a Practical Nurse license on June 23, 2010.

    
    

    After careful consideration of all of the information contained in your application file, it was the decision of the Panel to deny your request for a license based on C.R.S. §12-38-118 and §12-38-117(1)(a) and

    its determination that you:

    
    

    1. have procured or attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact;

       
       

       If you feel that you have additional information or documentation to submit that would change the outcome of the Panel's decision you may write a letter and request that your file and the supplemental information be re-examined by the Panel.

       Feel free to contact me if you have any questions regarding this process.

       
       

       Pursuant to sections §12-38-1-117, 12-38-118, and 24-4-104(9), C.R.S., you have the right to request a hearing regarding the denial of your application. In order to exercise this right, you must provide written notification to the Board at the above listed address within sixty days from the date of this letter specifically requesting a hearing. In the event that you do not make a timely request for a hearing, the denial will become final.

       
       

       At the end of the letter was a Certificate of Service, signed by the letter's author, certifying that the letter:

       was sent First Class Mail from Denver, Colorado, this 25th day of June 2010, addressed as follows:

       
       

       Benita S. Jean-Noel 1120 NE 155th Street Miami, FL 33162[5/]

       
       

13. Petitioner received the Colorado Board of Nursing's June 25, 2010, letter,6/ but did not request a hearing on the decision to "deny [her] request for a license." The decision therefore became final, as the letter indicated it would.

14. From approximately December 2011 to December 2012, Petitioner took additional nursing coursework at Sigma Institute of Health Careers (Sigma).

15. On November 5, 2012, before graduating from Sigma, Petitioner filed with Respondent a second Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (Second Florida Application). Her signature (dated September 5, 2012) was affixed on the line provided for the "Applicant's Signature" on the penultimate page (page 17) of the completed application form, and it was immediately preceded by a statement reading, in pertinent part, as follows:

    I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida.

    
    

    I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084,

    Florida Statutes.

    
    

    I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida.

    
    

16. At the time she filled out and signed the application form, Petitioner knew that she had applied for licensure as a practical nurse in Colorado and that her application had been denied on the grounds that she had "attempted to procure [the applied-for] license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact." Nonetheless, wanting to keep this damaging information from Respondent, in response to Question 6A on page 13 of the form, which was, "Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country?," she checked the "No" box, knowing her answer to be false.

17. Question 6A was one of four questions in the "Disciplinary History" section of the form, at the end of which was the following directive:

    
    

    If you answered "Yes" to any of the above questions, please send a written letter of self explanation. You must contact the Board(s) in the State(s) in which you were disciplined. You must request official copies of the Administrative Complaint and Final Order be sent directly to the Florida Board of Nursing.

    
    

    Consistent with her having answered Question 6A in the negative, Petitioner did not, along with the submission of her completed Second Florida Application, "send a letter of self explanation" concerning the denial of her Colorado Application.7/

18. Despite Petitioner's nondisclosure, in its investigation of Petitioner's application, Respondent found out about the Colorado Board of Nursing's denial of her application in 2010, and it obtained a copy of the June 25, 2010, denial letter that Petitioner had received from the Colorado Board of Nursing.

19. Thereafter, by letter dated November 15, 2012, addressed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city), the address she gave as her mailing address on her Second Florida Application, Respondent directed Petitioner to, among other things, "[r]equest that the Board(s) in the state[s] where [she was] previously denied send official copies of the final order to the Florida Board of Nursing" and to also "[s]ubmit a self explanation in reference to the denial(s)." In response to this request,

    
    

    Petitioner wrote Respondent a letter in which she denied, falsely, ever even having applied for a license in any state, including Florida, in the past.

20. Respondent, however, knew better. On February 15, 2013, it issued the Notice of Intent to Deny set out in the Preliminary Statement section of this Recommended Order. The Notice's Certificate of Service reflects that it was mailed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city) on February 18, 2013.

21. In response to the Notice, Petitioner wrote a letter to Respondent, dated March 4, 2013, claiming, falsely, that she "never applied to the Colorado Board of Nursing"8/ and expressing her "read[iness] to challenge any misconception or any misunderstanding regarding the matter." Respondent treated Respondent's letter as a request for hearing and, on March 12, 2013, referred the matter to DOAH for the assignment of an administrative law judge to conduct the requested hearing. The assignment was made, and the hearing was held, as noted above. The foregoing Findings of Fact are based on the evidence received at that hearing and the record as a whole.

    CONCLUSIONS OF LAW

    
    

22. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120.

    
    

23. A license from Respondent, obtained either by examination or endorsement, is needed to engage in practical nursing in Florida. §§ 464.008, 464.009, and 464.016(1)(a), Fla. Stat.

24. Petitioner has applied a second time for such a license, and her Second Florida Application is presently pending.

25. An application for licensure as a practical nurse may be denied: pursuant to section 464.018(1)(a), if the applicant has "attempt[ed] to procure . . . a license to practice

    nursing . . . by knowing misrepresentations"; pursuant to section 464.018(1)(b), if the applicant has had "a license to practice nursing . . . acted against, including the denial of licensure, by the licensing authority of another state"; pursuant to section 456.072(1)(f), if the applicant has had "a license or the authority to practice any regulated profession . . . acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law"; and pursuant to section 456.072(1)(h), if the applicant has "[a]ttempt[ed] to obtain . . . a license to practice a profession . . . by fraudulent misrepresentation."9/ These provisions are "designed to protect the public from nurses who are unqualified to practice their profession." Jordan v.

    Dep't of Prof'l Reg., 522 So. 2d 450, 453 (Fla. 1st DCA 1988).

    
    

26. If Respondent is presented with an application for licensure it believes to be subject to denial on one or more of the foregoing grounds, it must, before taking final action to deny the application, comply with the notice requirements of section 120.60(3), which provides, in pertinent part, as follows:

    Each applicant shall be given written notice, personally or by mail, that the agency intends to . . . deny . . . the application for license. The notice must state with particularity the grounds or basis for

    the . . . denial of the license . . . .

    Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has made a written request for notice of agency action. Each notice must inform the recipient of the basis for the agency decision, inform the recipient of any administrative hearing pursuant to ss. 120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, indicate the procedure that must be followed, and state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice and the certification must be filed with the agency clerk.

    
    

27. At any administrative hearing held on the matter, Respondent bears the burden of proving that the application is subject to denial, as alleged in the written notice given the applicant. See Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.'"); M.H. v. Dep't of Child.

    
    

    & Fam. Servs., 977 So. 2d 755, 761 (Fla. 2d DCA 2008)("[I]f the licensing agency proposes to deny the requested license based on specific acts of misconduct, then the agency assumes the burden of proving the specific acts of misconduct that it claims demonstrate the applicant's lack of fitness to be licensed."); and Fla. Dep't of HRS v. Career Serv. Comm'n, 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'"). To meet its burden, Respondent must establish by a preponderance of the evidence the applicant's culpability of the specific act(s) of misconduct alleged in the notice of intent to deny.10/ See M.H., 977 So. 2d at 762-63 ("The only issue before the ALJ was DCF's stated reason for denying the application for the renewal of their foster care license, i.e., whether 'C.S., while in [the foster parents'] care, suffered an injury that required significant pulling force and [that] could not be considered accidental.' . . . This issue involved a charge of specific misconduct upon which DCF relied as its sole reason for the denial of the [f]oster [p]arents' application for the renewal of their foster care license. Accordingly, DCF had the burden of proving this charge of specific misconduct by a preponderance of the evidence.").

28. In the instant case, Respondent provided Petitioner with the notice required by section 120.60(3), advising her of

    
    

    its intent to deny her Second Florida Application because it had preliminarily determined that she was "in violation of [s]ections 464.018(1)(a) and (b) and 456.072(1)(f) and (h), Florida Statutes, by having a license to practice nursing or any healthcare related profession acted against by the licensing authority of another jurisdiction, and by attempting to obtain a nursing license by bribery, misrepresentation, or deceit." These alleged violations, according to the Notice, were based on the following facts Respondent, as a result of its investigation of the application, believed to exist: "[i]n June 2010, the Colorado Board of Nursing denied [Petitioner's] application for licensure on the grounds that [Petitioner] had submitted fraudulent documentation that she [had] graduated from her practical nursing program"; and, notwithstanding the foregoing, on her Second Florida Application, she had responded to the question, "Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction, or country?," by answering "No."

29. Petitioner subsequently requested (albeit not expressly) an "administrative hearing pursuant to ss. 120.569 and 120.57" on the proposed denial of her application, and the requested hearing was thereafter held.

    
    

30. At that hearing, Respondent met its burden of proving, by a preponderance of the evidence, that Petitioner committed the violations (of sections 464.018(1)(a) and (b) and 456.072(1)(f) and (h)) alleged in the Notice of Intent to Deny in the manner specified therein (to wit: by having her Colorado Application denied, in 2010, for engaging in fraudulent conduct in the application process and then attempting to conceal the denial of that application from Respondent when she applied (for a second time) for a Florida practical nursing license two years later).

31. Having submitted such proof, Respondent has shown that it possesses the discretion to deny Petitioner's Second Florida Application pursuant to sections 464.018(1)(a) and (b) and 456.072(1)(f) and (h)--discretion that, in the opinion of the undersigned, it should exercise in light of the absence of record evidence establishing that, notwithstanding Petitioner's demonstrated lack of candor and honesty, the public interest would nonetheless be adequately protected if Petitioner were allowed to take the licensure examination and become licensed.11/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Nursing issue a final order denying Petitioner's pending application for licensure as a

practical nurse on the grounds alleged in the Board's February 15, 2013, Notice of Intent to Deny.12/

DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2013.

ENDNOTES

1/ Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to that version of Florida Statutes in effect at the time of the occurrence of the particular event or action being discussed.

2/ Petitioner's Proposed Recommended Order was received in the office of the DOAH Clerk on Friday, May 24, 2013, but after 5:00 p.m. Accordingly, pursuant to Florida Administrative Code Rule 28-106.104, it was treated as having been "filed as of 8:00 a.m. on the next regular business day," Tuesday, May 28, 2013, the day after the Memorial Day holiday.

3/ In her Proposed Recommended Order, Petitioner asks the undersigned to find that it was Ms. Barrientos who sent this fraudulent transcript to the Colorado Board of Nursing and to further find that Ms. Barrientos did so without Petitioner's knowledge. The undersigned has declined to make this finding because it is utterly without support in the record (which contains not so much as a hint as to what possible motive

Ms. Barrientos--or, for that matter, anyone else, other than Petitioner--might have had to send a fraudulent transcript in support of Petitioner's licensure application to the Colorado Board of Nursing). Cf. Fenelon v. Bd. of Nursing, Case No. 12- 3553, 2013 Fla. Div. Adm. Hear. LEXIS 175 **26-27 (Fla. DOAH

Mar. 25, 2013)("Although Petitioner may not have personally filled out the May 2006 RN application, the evidence was sufficient to prove that, more likely than not, Petitioner was complicit in the submission of that application. Petitioner admittedly participated in the processing of that application with the Board, accepted the benefit (RN license) procured by the fraudulent submission, and accepted the consequences detailed in the ESO and administrative complaint by relinquishing the fraudulently-procured license. Thereafter, Petitioner avoided disclosing her licensure history, choosing instead to misrepresent the reason why her license was inactivated. At hearing, Petitioner offered no proof to substantiate her implication that someone at the online school perpetrated this fraud without her knowledge or involvement.").

4/ As will be further explained in the Conclusions of Law section of this Recommended Order, a nursing license applicant's engaging in such deceitful conduct is now, and was in 2010, also a violation of Florida law. See §§ 456.072(1)(h) and 464.018(1)(a), Fla. Stat.

5/ This letter, as well as the Colorado Application, were attached to an affidavit (prepared on Colorado Board of Nursing letterhead and signed by the Board's Licensing and Contracts Manager) certifying, under seal, that the letter and application were "accurate copies of documents contained in the March 2010 application file of Benita S. Jean-Noel." These self- authenticating public records were received into evidence as part of Respondent's Exhibit 2. See §§ 90.803(8) and 90.902(1)

and (4), Fla. Stat. While Petitioner objected to the admissibility of other parts of Respondent's Exhibit 2 (specifically, pages 10 through 14 thereof), she did not object to the admissibility of the letter or the application, as pages 9 through 16 of the hearing Transcript reflect.

6/ This finding is based on the proof presented by Respondent that the letter was mailed to the address where Petitioner received mail at the time--proof that Petitioner failed to effectively rebut. Petitioner's testimony that she never received the letter and made no effort at any time to contact the Colorado Board of Nursing about the status of her application is, in the view of the undersigned, simply not credible, and it

therefore is insufficient to overcome the rebuttable presumption of receipt arising from Respondent's proof of mailing. See Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394, 402 (Fla. 4th DCA 2012)("Proof of mailing of a document to the correct address creates a presumption that the item mailed was, in fact, received. The presumption, however, is rebuttable. '[T]he denial of receipt does not automatically overcome the presumption but instead creates a question of fact which must be resolved by the trial court.'")(citations omitted); Reich v. Dep't of Health, 868 So. 2d 1275, 1276 (Fla. 1st DCA 2004)("The final order's certificate of service shows that a copy of the order was mailed to Appellant's correct address, which creates a presumption that Appellant received the order. However, this presumption is rebuttable. Appellant's denial of receipt of the order does not automatically overcome this presumption, but it does create a question of fact that must be resolved through an evidentiary hearing.")(citations omitted); Scutieri v. Miller, 584 So. 2d 15,

16 (Fla. 3d DCA 1991)("Defendant argues that in this case the suggestion of death contains a certificate of service showing that the suggestion of death was mailed to plaintiff's predecessor counsel. Defendant correctly states that proof of mailing raises the presumption that the mail was received. Defendant then quotes that part of Scott v. Johnson, 386 So. 2d

67 (Fla. 3d DCA 1980), which states that 'this presumption is not overcome by a denial, even though sworn, that the order was not received.' Id. at 69. Defendant interprets this language to mean that the certificate of service is conclusive and that the presumption of receipt is irrebuttable. That is not so. . . .

[T]he denial of receipt does not automatically overcome the presumption but instead creates a question of fact which must be resolved by the trial court."); and World on Wheels, Inc. v.

Int'l Auto Motors, Inc., 569 So. 2d 836, 837 (Fla. 3d DCA 1990)("The certificate of service on the subject order was prima facie proof that the said order was mailed to plaintiff's counsel, and proof of such mailing created a presumption (although not an irrebuttable one) that plaintiff's counsel received the order in the mail; on the other hand, the plaintiff's affidavits filed below constituted some evidence that the subject order was not received in the mail by plaintiff's counsel. It therefore became a question of fact as to whether plaintiff's counsel had received the subject order in the mail.").

7/ The obviously damaging nature of the information Petitioner failed to disclose in responding to Question 6A supports the inference--which the undersigned has drawn--that her nondisclosure was, not an innocent, inadvertent mistake, but

rather an intentional act of deceptive concealment calculated to prevent Respondent from learning the truth about her "Disciplinary History." Cf. Golden Hour Data Sys. v. emsCharts, Inc., 614 F.3d 1367, 1378 (Fed. Cir. 2010)("If one or both read the brochure and deliberately did not disclose the damaging information on the inside, their actions would give rise to an inference of intent to deceive."); United States v. Palmer, 809 F.2d 1504, 1505 (11th Cir. 1987)("Palmer's involvement with drugs served to contradict his defense at trial that he was merely ignorant of his duty to file tax returns and lacked any intent to evade the payment of taxes. From the illegal source of the funds, a jury could reasonably infer an intent to conceal income. The evidence of his drug activity established a motive for Palmer's conduct. . . ."); Carter v. Hartford Fire Ins. Co., Case No. 1:11-CV-04008-TWT-GGB, 2012 U.S. Dist. LEXIS 148630 *8 (N.D.

Ga. Sept. 17, 2012)("[A] court may infer an intent to conceal if the party knew about the undisclosed claims and had a motive for concealing them."); Allstate Ins. Co. v. Bogoraz, 818 F. Supp. 2d 544, 550 (E.D.N.Y. 2011)("[T]he complaint raises a strong inference of fraudulent intent by alleging facts that support a motive to deceive and access to accurate information ");

Coppedge v. SunTrust Banks, Inc., Case No. 3:08-CV-23(HL), 2009

U.S. Dist. LEXIS 2363 *9 (M.D. Ga. Jan. 14, 2009)("A showing of intent to make a mockery of the courts requires a 'purposeful contradiction' or deliberate manipulation, 'not simple error or inadvertence.' In a bankruptcy case, courts can infer that the debtor possessed the requisite intent if the debtor knew of the undisclosed claims and had a motive to conceal them.); Eisai Co. v. Dr. Reddy's Labs., Ltd., Case Nos. 03 Civ. 9053 (GEL) & 03 Civ. 9223, 2007 U.S. Dist. LEXIS 34716 **56-57 (S.D.N.Y. May 11, 2007)("Where information withheld from the patent office is highly material, and the applicant knows or should have known of its materiality, courts may infer a deceptive intent."); and Knudsen v. Young, Case Nos. 80-719 and 80-1802, 1981 Wisc. App. LEXIS 4051 **6-7 (Wis. Ct. App. 1981)("Similarly, there is sufficient credible evidence from which the jury could infer that the false representation by Jill L. Young was made with intent to defraud Knudsens and for the purpose of inducing them to act upon it. Youngs were attempting to sell the house for a substantial sum of money, and Knudsens were prospective purchasers. Youngs knew that the previous owners were not able to sell the house for full value because of the water leakage problem, which had been disclosed to Youngs in a sales brochure. The sales brochure given to Knudsens in the Knudsen-Young transaction made no direct reference to the problem, and Jill L. Young represented that the water leakage problem had been solved despite evidence that the basement had sustained water damage subsequent to addition of new

drain tile and sump crocks. It can be reasonably inferred from this evidence that Jill L. Young's false representation was made with intent to defraud Knudsens and to induce them to purchase the house.").

8/ At hearing, Petitioner testified that what she really had "mean[t] to say" in her letter was that, to her knowledge, she was never denied licensure in Colorado, not that she "never applied" for such licensure. She gave no satisfactory explanation, however, as to why, if she did not mean to say she had "never applied," why she had used those very words in her letter.

9/ These also constitute grounds for taking disciplinary action against those who already possess a practical nursing license.

In determining what disciplinary action to take against licensees for violating sections 464.018(1)(a) and (b) and 456.072(1)(f) and (h), Respondent must consult and apply the provisions of Florida Administrative Code Rule 64B9-8.006(3) and (5), which set forth "disciplinary guidelines [that must] be followed by [Respondent] in imposing disciplinary penalties upon licensees" and prescribe "[c]ircumstances which may be considered for purposes of mitigation or aggravation of penalty." See Parrot Heads, Inc. v. Dep't of Bus. & Prof'l Reg., 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties."). The unambiguous language of these rule provisions make clear that they apply only to "licensees," not to applicants for licensure such as Petitioner, unlike the rule provisions at issue in Marrero v. Department of Professional Regulation, 622 So. 2d 1109, 1112 (Fla. 1st DCA 1993), a case in which it was held

that the Board of Psychological Examiners could not "take the position . . . that its [disciplinary guidelines] rule d[id] not embrace 'applicants' for licensure as well as license holders [because such an interpretation was] contrary to the unambiguous language of the rule" indicating that it covered both licensees and applicants.

10/ Accordingly, in making the Findings of Fact contained in this Recommended Order, the undersigned has applied the preponderance- of-the-evidence standard.

11/ "[H]onesty and trustworthiness are essential to the practice of nursing." Spence v. Bureau of Prof'l & Occupational Affairs, Case No. 1692 C.D. 2009, 2010 Pa. Commw. Unpub. LEXIS 221 *8 (Pa.

Commw. Ct. 2010); see also Scirex Corp. v. Fed. Ins. Co., 313 F.3d 841, 848 (3d Cir. 2002)(nursing is "a field characterized by

strict adherence to procedure"); Dep't of Health, Bd. of Nursing v. English, Case No. 01-0677PL, 2001 Fla. Div. Adm. Hear. LEXIS 3342 *4 (Fla. DOAH July 18, 2001; Fla. Bd. of Nursing Dec. 17, 2001)("Honesty, integrity, and good moral character are integral components of a nurse's ability to practice nursing."); Dep't of Prof'l Reg., Bd. of Nursing v. McCormick, Case No. 83-1260, 1983 Fla. Div. Adm. Hear. LEXIS 6193 *23 (Fla. DOAH Sept. 21, 1983;

Fla. Bd. of Nursing Dec. 12, 1983)("[T]he intentional falsification of an application form calls into question the basic integrity and honesty of the individual which, in a nurse, of all people, is so important."); and Bd. of Nursing v. Moyer, Case No. 76-245, 1976 Fla. Div. Adm. Hear. LEXIS 3828 *7 (Fla.

DOAH Aug. 12, 1976; Fla. Bd. Nursing Sept. 8, 1976)("The proper handling, administration and safeguarding of such substances are of paramount importance in order to protect the life, health and welfare of patients and of the public at large. It is thus necessary that those such as nurses who have ready and constant access to drugs be absolutely reliable, honest and trustworthy.").

12/ In her Proposed Recommended Order, Petitioner complains that Respondent has chosen to "pursue[] the most severe and extreme form" of adverse action against her--the denial of her application for licensure. In fact, Respondent could have "pursued" an even more "severe and extreme" course of adverse action--the denial of her application plus the imposition of a fine. See § 456.072(2)(d), Fla. Stat.; and Fla. Admin. Code

R. 64B9-8.006(6)("In instances when a licensee or applicant is found guilty of any of the above offenses involving fraud or making a false or fraudulent representation, the Board shall impose a fine of $10,000.00 per count or offense.")(emphasis added). Had it decided to also seek the imposition of a monetary penalty, however, Respondent would have been required to prove Petitioner's guilt of sections 464.018(1)(a) and (b) and 456.072(1)(f) and (h), not by a mere preponderance of the evidence--which, as noted above, is the standard applicable where "the licensing agency proposes to [simply] deny the requested license based on specific acts of misconduct" (as held in M.H., 977 So. 2d at 761)--, but by clear and convincing evidence. See Osborne Stern, 670 So. 2d at 935 ("[A]n administrative fine deprives the person fined of substantial rights in property.

Administrative fines . . . are generally punitive in nature. . . . Because the imposition of administrative

fines . . . [is] penal in nature and implicate[s] significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted."); Diaz de la Portilla v. Fla. Elect. Comm'n, 857 So.

2d 913, 917 (Fla. 3d DCA 2003)("We agree with the administrative law judge that the standard of proof in a case seeking fines under chapter 106 is clear and convincing evidence."); and

§ 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based on a preponderance of the evidence, except in penal . . . proceedings."). (Even if the undersigned had found--which he has not--that Respondent had established Petitioner's guilt of sections 464.018(1)(a) and (b) and 456.072(1)(f) and (h) by clear and convincing evidence, Respondent still would be unable to fine Petitioner as part of its final order in this case, given Respondent's failure to have heretofore put Petitioner on notice, by pleading or other communication of record directed to her or her counsel, that she was facing this potential penalty. See Bemenderfer v. Dep't of Bus. & Prof'l Reg., Div. of Real Estate, 955 So. 2d 659, 663 (Fla. 4th DCA 2007)("It is simply beyond dispute that DBPR-DRE waived any attempt to impose a suspension of 8 years by declining to seek such a penalty in the original proceeding."); Williams v. Turlington, 498 So. 2d 468 (Fla. 3d DCA 1986)("Since Williams was not given notice by either the complaint or later proceedings that he was at risk of having his license permanently revoked, the Commission's imposition of the non-prayed-for relief of permanent revocation, even if justified by the evidence, was error."); and Dep't of Bus. & Prof'l Reg., Constr. Indus. Licensing Bd. v. Hufeld, Case No. 94-6781, 1995 Fla. Div. Adm. Hear. LEXIS 4518 *8 (Fla. DOAH May 3, 1995;

Constr. Indus. Licensing Bd. Sept. 26, 1995)("[R]espondents in license discipline cases are entitled to notice of the penalty sought by the agency, and the penalty imposed cannot be more severe than the most severe potential penalty of which a respondent had notice.")); cf. United States v. Diaz, Case

No. 11-CR-00821-2 (JG), 2013 U.S. Dist. LEXIS 11386 **23-24 n.38

(E.D.N.Y. Jan. 28, 2013)("A defendant is subject to the mandatory minimum only if the charging instrument puts him on formal notice of it by alleging the requisite type and quantity of drug and citing the relevant penalty provision. Thus, whether a defendant faces a mandatory minimum at all is a matter left to prosecutorial discretion.")(citations omitted).

COPIES FURNISHED:

Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399

James Jean-Francois, Esquire

Law Offices of James Jean-Francois Suite 211-A

6100 Hollywood Boulevard

Hollywood, Florida 33024

Jennifer A. Tschetter, General Counsel Department of Health

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

Joe Baker, Jr., Executive Director Board of Nursing

Department of Health

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

Dr. Ann-Lynn Denker, ARNP, 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: 13-000838

Orders for Case No: 13-000838