STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLLY NANCE,

vs.

Petitioner,

Case No. 14-4056

BOARD OF NURSING,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was conducted in this case on November 18, 2014, in St. Petersburg, Florida, before Lynne A. Quimby-Pennock, Administrative Law Judge with the Division of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Polly Ann Nance, pro se

5709 Manchester Street, North St. Petersburg, Florida 33703

For Respondent: Lee Ann Gustafson, Esquire

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

STATEMENT OF THE ISSUE

Whether Petitioner’s application for licensure as a Certified Nursing Assistant should be approved or denied.

PRELIMINARY STATEMENT

On or about April 20, 2013, Petitioner submitted an application to the Florida Board of Nursing (Respondent) for licensure as a Certified Nursing Assistant (CNA) by reciprocity. On April 21, 2014, Respondent issued a Notice of Intent to Deny Petitioner’s application. Petitioner timely filed a “Notice of Appellee” (notice) which provided an “existing rebuttal statement.”1/ Respondent forwarded this notice to the Division for the assignment of an administrative law judge. The final hearing was scheduled and held on November 18, at 9:00 a.m. in St. Petersburg, Florida.

At the final hearing, Petitioner testified on her own behalf. Petitioner did not offer any exhibits into evidence; however, she did utilize Respondent’s composite exhibit.

Respondent’s sole witness was Petitioner. Respondent’s composite Exhibit One,2/ a certified copy of Petitioner’s CNA application file, was admitted into evidence without objection.

At the conclusion of the hearing, the parties were advised that the proposed recommended orders (PROs) were due ten days after the filing of the transcript. Respondent’s counsel requested that the PROs be filed within 30 days of the filing of the transcript. That request was granted.

The one-volume Transcript was filed on November 24, 2014, and a notice of filing was issued that same day. On December 22,

2014, Petitioner filed a four-page post-hearing document. To the extent the document contained new testimony or evidence, not subject to cross-examination, that information has not been considered. To date, Respondent has not filed a PRO.

FINDINGS OF FACT

1. Respondent regulates CNA practice. Respondent, as part of its statutory responsibilities, issues licenses to individuals who demonstrate that they meet the requirements found in section 464.203, Florida Statutes, and the rules adopted.

2. Petitioner is an applicant for certification to practice as a CNA. At issue in this proceeding is the application for licensure by reciprocity as a CNA signed by Petitioner on

   April 20, 2013. This application will be referred to as the “April application.”

3. In section 4 of the April application, Petitioner was asked a “yes-no” question regarding any criminal history. The 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), driving while impaired (DWI) and driving while license is suspended (DWLS) are not minor traffic offenses for purposes of this question.

   (emphasis added.)

   
   

4. Petitioner checked the box “No” to the above question.

   
   

5. Just above the applicant signature line in the April application, the following statement provides:

   I, the undersigned, state that I am the person referred to in this application for certification/licensure in the State of Florida. I recognize that providing false information may result in disciplinary action against my certificate/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 certificate/license to practice as a Certified Nursing Assistant in the State of Florida. Florida Law requires you to immediately inform the Board of any material change in any circumstances or condition state in the application which takes place between the initial filing and the final granting or denial of the certificate/license and to supplement the information on this application as needed.

   
   

6. Petitioner confirmed that she executed the April application and dated it April 20, 2013.

7. Evidence at hearing established that: in May 2009, while living in Kentucky, Petitioner was found guilty of operating a motor vehicle while under the influence of alcohol or drugs; in November 2009, Petitioner was found guilty of alcohol intoxication in a public place; in late April 2012, Petitioner entered a deferred prosecution for the offense of possession of a

   
   

   controlled substance;3/ and in June 2012, Petitioner pled guilty to operating a motor vehicle while under the influence of alcohol or drugs (2nd offense).

8. Petitioner provided a fraudulent misrepresentation on her April application regarding her criminal history. Petitioner, in part, testified:

   Now, to the best of my knowledge, when I had applied for the application -- you know, I’m not familiar with the terminology of nolo contendere, no contest. So, as a clerical error on my behalf, when the document stated ‘driving under the influence was a minor traffic offense for this purpose of this question, I thought that, if I had been charged with a DUI, that I did not have to mark that box. That was my understanding of the question.

   
   

   Petitioner’s claim that she did not understand the terms used in section 4 of the April application is not credible. That Petitioner misread the question is clear. However, Petitioner had no less than four encounters with the criminal justice system. She was arrested, attended her arrangements, and proceeded to hearing without counsel at least once.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of this action pursuant to sections 120.569, 120.57, and 120.60, Florida Statutes (2013).4/

10. As an applicant for licensure, Petitioner bears the ultimate burden of proving by a preponderance of the evidence

    
    

    that her application should be approved. Dep’t of Transp. v.

    
    

    J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep't of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977); § 120.57(1)(j),

    Fla. Stat.

    
    

11. Respondent’s Notice of Intent to Deny provides the following basis for the denial of Petitioner’s application (in addition to the question/answer provided in paragraph 4 above):

    The applicant is in violation of Sections 464.018(1)(a) and 456.072(1)(h), Florida

    Statutes, 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.

    
    

12. Section 456.072, Florida Statutes, describes the disciplinary actions that may be taken, in pertinent part, as:

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken.

       
       

       * * *

       
       

       (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.

       
       

       * * *

       
       

    2. When the board, . . ., finds any person guilty of the grounds set forth in subsection

       (1) or of any grounds set forth in the

       
       

       applicable practice act, including conduct constituting a substantial violation of subsection (1) . . ., it may enter an order imposing one or more of the following penalties:

       
       

       1. Refusal to certify, or to certify with restrictions, an application for a license.

          
          

       2. Suspension or permanent revocation of a license.

       
       

       * * *

       
       

       In determining what action is appropriate, the board, . . . must first consider what sanctions are necessary to protect the public

       . . .. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.

       
       

13. Section 464.018, Florida Statutes,5/ describes the disciplinary actions that may be taken, in pertinent part, as:

    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.

          
          

14. Petitioner failed to meet the burden of proof.

Respondent is justified, pursuant to section 456.072(1)(h), in denying Petitioner’s application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing issue a final order denying Petitioner’s application for licensure as a certified nursing assistant on the grounds alleged in Respondent’s April 18, 2014, Notice of Intent to Deny.

DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

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 15th day of January, 2015.

ENDNOTES

1/ This “Notice of Appellee” is Petitioner’s request for hearing.

2/ Page 38 of composite Exhibit One contained Petitioner’s social security number: it has been redacted.

3/ In September 2013, after completing the deferred prosecution program, the offense of possession of a controlled substance was dismissed.

4/ Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to the 2013 version.

5/ Part one of section 464 (464.001-464.027) specifically addresses the Nurse Practice Act; Part two of section 464 (464.201 – 464.2085) specifically addresses Certified Nursing Assistants.

COPIES FURNISHED:

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

Polly Ann Nance

5709 Manchester Street, North St. Petersburg, Florida 33703 (eServed)

Joe Baker, Jr., Executive Director Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399 (eServed)

Jennifer A. Tschetter, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 (eServed)

Lavigna A. Kirkpatrick, BS, RN, Chair Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02 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: 14-004056

Orders for Case No: 14-004056