STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOSEA THEREO PRATT,

vs.

Petitioner,

Case No. 13-2417

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 W. David Watkins, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH), on September 24, 2013, by video teleconference at sites in Daytona Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Hosea Thereo Pratt, pro se

4440 Grissom Road

Deland, Florida 32724

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 April 9, 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 applicant was convicted or (sic) battery in 2007 and driving under the influence in 2011.

The application for certification was submitted on October 19, 2012. The application includes the following question:

Have you EVER been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if adjudication was withheld. Driving under the influence (DUI) or driving while impaired (DWI) is not a minor traffic offense for the purposes of this question.

The applicant answered the question NO.

The applicant is in violation of sections 464.018(1)(a) and (c) and 456.072(1)(h),

Florida Statutes, by being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing assistance or to the ability to practice

nursing, 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 sections 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 his application. The matter was thereafter referred to DOAH on June 27, 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 September 24, 2013. Petitioner was called as Respondent’s sole witness. Petitioner also testified on his own behalf. In addition to the testimony of Petitioner, Respondent offered one composite exhibit, consisting of the application file of Petitioner. This exhibit was received into evidence without objection.

Following the conclusion of the evidentiary portion of the hearing, the parties advised the undersigned that a transcript of the hearing would not be ordered. Accordingly, the undersigned set the deadline for the filing of proposed recommended orders at ten days from the date of the hearing.

Respondent timely filed its Proposed Recommended Order on September 30, 2013. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

Background

1. On May 1, 2011, Petitioner graduated from Southeastern Community College (West Burlington, Iowa) with a certificate in Practical Nursing (PN). Thereafter, Petitioner received a passing score on the Iowa PN licensure examination, and was issued an Iowa PN license on June 13, 2012.

2. Although both he and his wife hail from Iowa, Petitioner desired to relocate to Florida and seek employment as a practical nurse. In pursuit of that goal, Petitioner submitted an application for PN licensure by endorsement on October 19, 2012.

   Petitioner’s Criminal History

   
   

3. Prior to submitting the Florida application, Petitioner had run afoul of the law on three occasions, only two of which are relevant to the application at issue.

4. On May 10, 2007, Petitioner entered a plea of guilty to misdemeanor battery in Henderson County, Illinois. As a result of this plea, Petitioner was sentenced to two years of supervision and was required to complete anger management counseling. At the request of the Florida Board of Nursing

   
   

   (Board), Petitioner provided a written account of the circumstances surrounding the battery charge as follows:

   I had just gotten married and my wife and I were out celebrating her birthday at a club. A bouncer came to me and said that the person I had came in with was being bothered by someone else and that I should go check on her. I got my wife and we were in the process of leaving along with the rest of our group. The person bothering my wife continued talking and fussing. As I turned my back to leave, the person grabed [sic] me by the shoulder and lunged at my wife. In reaction I instinctively protected my wife feeling that she was in danger. Everyday since then this has haunted me. If I had taken a different path I would not be writing you this letter today. I feel I have learned the hard lesson from this mistake. I completed the requirements of the court for this along with my own self evaluation of life of how better to handle the situation or avoid them all together.

   
   

5. Petitioner’s unrebutted testimony at hearing regarding the circumstances of the battery incident was consistent with his written account above, and is found to be credible.

6. Henderson County court records reflect that Petitioner was accused of striking the person who had been bothering his wife “in the face with his fist.”

7. On July 27, 2011, Petitioner was charged with driving under the influence, also in Henderson County, Illinois. On August 30, 2011, Petitioner entered a plea of guilty to the misdemeanor charge.

   
   

8. In his written submission to the Board, Petitioner explained the circumstances surrounding this incident as follows:

   Regarding my DUI, I had just finished my semester for LPN. I was out celebrating with some classmates. I was pulled over because my oversized tires went over the white line. I was arrested for DUI. I went to the states attorney and explained my situation. He informed me that he would allow me to have court supervision if I pled guilty and pay a hefty fine. My lawyer informed me that this was not a reasonable means for stopping me, but since I had already talked to the states attorney, he informed me that it would not be wise to fight this case because I had already spoke with the states attorney and gave a verbal agreement of what I agreed to do. I have completed all of my classes, I am still paying monthly on my fine, which will be finished this year. I have learned my lesson from this situation. As a nurse I have a high standard to uphold to help people get better and by drinking and driving I was endangering many lives which is the opposite of my civic, humanitarian and the basic oath I took when I decided to become a nurse.

   
   

9. Petitioner’s unrebutted testimony at hearing regarding the circumstances of the DUI charge was consistent with his written account above, and is found to be credible.

10. As a result of his guilty plea, Petitioner was ordered to pay a fine and attend a substance abuse class, which he successfully completed.

    
    

    Petitioner’s Application

    
    

11. Respondent introduced a copy of Petitioner’s “Initial Application for Licensure” which was submitted by Petitioner through the Board’s online website. The online application contains the following question:

    Criminal History

    
    

    Have you ever been convicted of, or entered a plea of guilty, nolo contender, or no contest to, a crime in any jurisdiction other than a minor traffic offense?2/

    
    

    Your answer: NO

    
    

12. At hearing, Petitioner testified that although he carefully reviewed his application before submitting it, he did not intend to answer the above question in the negative, and that “he made a mistake” when he did so. On cross-examination Petitioner confirmed that he read and understood the Affirmation Statement at the end of the application, and that he affirmed that the information he provided was true and correct.

13. There is no question that Petitioner provided a false response on his application regarding his criminal history. However, the evidence of record does not support a finding that the false statement was intentional. At hearing, Petitioner presented as an articulate, intelligent, and well-educated individual. Petitioner had also successfully undergone the PN application process in Iowa, and was therefore familiar with the

    
    

    application review process. As such, it is reasonable to infer that Petitioner was aware that the information he provided on his application would be verified by Board personnel. This makes it increasingly unlikely that Petitioner intentionally falsified his application, since he could have no reasonable expectation of successfully perpetrating a fraud on the Board.

14. Petitioner was notified by correspondence dated November 10, 2012, that he was required to provide information concerning his criminal history. As noted, it was not until after the notification that Petitioner provided explanations regarding his criminal charges to the Board.

15. Petitioner included several letters of reference with his application to the Board. One of those letters was from his former employer in Iowa, Wayland Mennonite Home Association. In that letter, the facility’s director of nursing wrote:

    December 4, 2012

    
    

    To Whom it may Concern:

    
    

    Hosea Pratt has been employed as a licensed practical nurse, at Parkview Home, Wayland, Iowa. He started employment September 11, 2012. Our pre-employment criminal background evaluation revealed a court proceeding regarding the suspension of his Iowa driver’s license. There was no disposition on this case and Iowa Department of Human Services ruled this did not preclude him from practicing nursing. He had a valid Iowa driver’s license at the time of hire.

    
    

    Hosea functioned independently as a night shift charge nurse. He assisted with orientation of new nursing staff. He completed assigned tasks during his scheduled shift. He proved to be a thoughtful young man, who demonstrated kindness towards our residents. He had good assessment skills and excellent computer technical abilities. He would be welcomed back to work in this facility.

    
    

16. On April 9, 2013, the Board informed Petitioner that it intended to deny his Florida application. Petitioner thereafter challenged the intended denial of his application, and the instant proceeding ensued.

    CONCLUSIONS OF LAW

    
    

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

18. 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.

19. 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". In addition, section 464.018(1)(c) provides that an application may be denied if an applicant has been convicted or found guilty of, or entered 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. Section 464.018(1)(d)5. specifically identifies battery as a crime related to the practice or ability to practice nursing. 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).

20. 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 grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. 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 sections 120.569 and 120.57 or judicial review pursuant to section 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.

    
    

21. 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.3/ 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.").

22. At hearing, Respondent met its burden of proving, by a preponderance of the evidence, that Petitioner committed a violation of section 464.018(1)(c) and (d) by being found guilty of battery.4/ However, the evidence also established that the battery charge at issue was an isolated incident, and was provoked by a third party. Petitioner demonstrated remorse for losing his temper, and attended an anger management program.

23. The second basis for the Board’s intended denial relates to Petitioner’s failure to disclose his criminal history. Section 464.018(1)(a) provides:

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

       
       

       1. Procuring, attempting to procure, or renewing a license to practice nursing by bribery, by knowing misrepresentations, or through an error of the department or the board.

24. Inclusion of the term “knowing misrepresentation” in the above provision mandates a showing of mens rea, or intent,

    
    

    to misrepresent the information provided on an application.5/ As noted, Respondent failed to establish that Petitioner intentionally misrepresented his past criminal infractions to the Board.

25. Having proven by a preponderance of the evidence that Petitioner committed a violation of section 464.018(1)(c) and

    (d) by pleading guilty to the charge of battery, Respondent has shown that it possesses the discretion to deny Petitioner's application. However, in the opinion of the undersigned, given the mitigating circumstances surrounding Petitioner’s action, denial of Petitioner’s application is not justified on this basis. As noted, there is no evidence in this record to suggest that this single incident is indicative of a violent proclivity, or that the public interest would nonetheless be adequately protected if Petitioner were allowed to become licensed in Florida. Moreover, Petitioner has demonstrated his ability to practice nursing with skill and “kindness towards (our) residents” as evidenced by the employer letter of reference included with his application.

26. As authorized by section 464.006, the Board has adopted rules relating to nurse discipline, including restrictions of practice and conditions of probation. Florida Administrative Code Rule 64B9-8.006 sets forth the range of penalties to be imposed by the Board upon practitioners and

    
    

    applicants for licensure who are guilty of violating chapters

    
    

    464 and 456. The rule provides that for criminal violations directly relating to the practice of nursing, penalties shall range from reprimand to a $10,000 fine and suspension for a first offense, and a $500 fine and probation to revocation for a second offense. Florida Administrative Code Rule 64B9- 8.006(3)(c).

27. There is no evidence in this record to establish that Petitioner does not meet the minimum requirements for safe practice, or poses a danger to the public. Accordingly, the undersigned recommends that Petitioner’s application be approved without conditions. However, should the Board determine that conditions are warranted upon this record, a one-year period of probation, with the minimum conditions set forth at Florida Administrative Code Rule 64B9-8.006(1)(f), is recommended.

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 approving Petitioner's pending application for licensure as a practical nurse without conditions. However, should the Board determine that approval with conditions is warranted, a one-year probationary period is recommended.

DONE AND ENTERED this 22nd day of October, 2013, in Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS 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 22nd day of October, 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/ The online version of the application received in evidence does not include the additional language set forth in the Notice of Intent to Deny, that is, “[Y]ou must include all misdemeanors and felonies, even if adjudication was withheld. Driving under the influence (DUI) or driving while impaired (DWI) is not a minor traffic offense for the purposes of this question.”

3/ Accordingly, in making the Findings of Fact contained in this Recommended Order, the undersigned has applied the

preponderance-of-the-evidence standard.

4/ Respondent did not establish that Petitioner’s guilty plea to the charge of driving under the influence constitutes a violation of section 464.018(1).

5/ Similarly, section 456.072(1)(h), includes the requirement that in order to be actionable, misrepresentations to the Board must be “fraudulent” and therefore intentional:

(h) Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board.

COPIES FURNISHED:

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

Hosea Thereo Pratt 4440 Grissom Road

Deland, Florida 32724

Joe Baker, Jr., Executive Director Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin CO2 Tallahassee, Florida 32399

Dr. Ann-Lynn Denker, ARNP, Chair Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin CO2 Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel Department of Health Boards/Councils/Commissions

4052 Bald Cypress Way, Bin AO2 Tallahassee, Florida 32399

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: 13-002417

Orders for Case No: 13-002417