STATE OF FLORIDA

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

LATRTICE J. WALKER,

vs.

Petitioner,

Case No. 15-7254

BOARD OF NURSING,

Respondent.

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was conducted in this case on February 8, 2016, in Tallahassee, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. The parties were represented as set forth below.

APPEARANCES

For Petitioner: Latrice J. Walker, pro se

454 Southwest 10th Circle Chiefland, Florida 32626

For Respondent: Deborah Bartholow Loucks, Esquire

Lynette Norr, 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, Latrice J. Walker’s application for certification as a certified nursing assistant should be granted.

PRELIMINARY STATEMENT

On June 30, 2015, Respondent, Department of Health, Board of Nursing (the “Board”), notified Petitioner that her application for certification as a certified nursing assistant by examination was denied. The basis of the denial was that Petitioner had answered “No” to questions concerning whether she had any criminal convictions. Petitioner timely requested an administrative hearing to contest the Board’s contention that her application for certification should be denied.

At the final hearing, Petitioner testified on her own behalf. She did not present any other witnesses and offered no exhibits into evidence for consideration. The Board did not call any witnesses other than Petitioner but offered one composite exhibit into evidence, which was admitted.

A Transcript of the final hearing was ordered; it was filed at the Division of Administrative Hearings on March 1, 2016. By rule, parties were allowed ten days to submit proposed recommended orders. Petitioner submitted a written document on March 3, 2016, which was accepted as her Proposed Recommended Order; the Board submitted a Proposed Recommended Order on

March 9, 2016. Each party’s submission was duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 31-year old woman. She is currently employed as a key-holder at Church’s Chicken, where she is a de facto assistant manager. Her duties include handling customers’ credit cards and cash, as well as making drop deposits at a local bank.

2. On or about March 4, 2013, Petitioner completed and submitted a Florida Certified Nursing Assistant Application.

   The application was received by the Board on March 12, 2013. On page 4 of the application, there is a section entitled “Criminal History.” That section asks of the applicant:

   “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? 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 suspended (DWLS) are not minor traffic offenses for the purposes of this question.”

   
   

3. Petitioner answered, “No”, to the criminal history question. In fact, she had three relevant arrests on her record, to wit: 1) In January 2003, Petitioner was arrested and charged with a violation of section 832.05(2), Florida Statutes (2002), relating to the issuance of a bad check; 2) in April of the same year, Petitioner was arrested and charged with violation of section 812.014(3)(a), Florida Statutes (2002),

   
   

   relating to petit larceny, and section 831.09, Florida Statutes (2002), relating to passing a forged instrument; and 3) on August 8, 2004, Petitioner was arrested and charged with leaving the scene of an accident in violation of section 316.061(1), Florida Statutes (2004), and possession of less than 20 grams of marijuana, a violation of section 893.13(6) (2004). Petitioner entered a plea on the 2002 charges and adjudication was withheld. She was found guilty of the 2004 charges.

4. Petitioner provided two reasons for answering, “No”, to the criminal history question: First, she believed that because adjudication had been withheld she did not need to disclose the arrests. Second, she was holding her six month-old child while preparing the application and may have hit the wrong box on the application form. The testimony concerning her child affecting her typing of the application was not persuasive. Whatever the reason for her response on the application, it is clear Petitioner did not try to hide her criminal past. As early as October 2013, she had requested from the Levy County Clerk of Court information about her convictions so that she could provide that information to the Board.

5. On February 24, 2014, almost one year after submitting her application, the Board sent Petitioner a letter indicating her application was not complete. The letter advised Petitioner that incomplete applications would expire after one year from

   
   

   the “received date.” The letter then identified information that was missing from Petitioner’s application, including the following items:

   1. Proof of completion of probation or parole;

      
      

   2. Proof of completion of fines, restitution, or court-ordered sanctions for each offense;

      
      

   3. Certificates, counselor letters, and proof of treatment or rehabilitation;

      
      

   4. Proof of completion of community service; and

      
      

   5. Proof of completion of pre-trial intervention.

      
      

6. It is clear from the Board’s letter to Petitioner that the Board was aware of her criminal convictions as the omissions letter had asked for explanations as to completion of sanctions for each offense.

7. Petitioner went to the Levy County Courthouse and obtained the requested information. She provided the information to the Board as requested. On March 4, 2014, the Board notified Petitioner that additional explanations about each of the offenses were required. Again, Petitioner provided the requested information.

8. On or about June 30, 2015, the Board notified Petitioner that her application for certification was being denied. No one from the Board testified concerning the basis

   
   

   for the denial, but the Notice of Intent to Deny set out the following bases for the denial:

   That Petitioner was convicted of or entered pleas to a charge of no driver’s license in 2000, worthless checks, petit theft and uttering a forged instrument in 2003, and leaving the scene, resisting arrest, possession of marijuana and petit theft in 2004.

   
   

   The application includes the following question: 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? 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 suspended (DWLS) are not minor traffic offenses for the purposes of this question.

   
   

   The applicant answered the question, “NO”.

   
   

   The applicant is in violation of Sections 464.204(1)(a), 464.018(1)(a)(c) and (o), and

   456.072(1)(c) and (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.

   
   

9. No further explanation for denial of Petitioner’s application for certification was stated in the Notice of Intent to Deny or by way of testimony or other evidence at final hearing in this matter. However, one may surmise that the basis for the Board’s denial of the application was: 1) that

   
   

   Petitioner had been found guilty or pled nolo contendere to the enumerated crimes, and 2) that Petitioner attempted to mislead the Board in her application for certification.

10. Petitioner provided evidence as to each of the issues raised in the Board’s Notice of Intent to Deny. Although her memory was clouded as to specifics about each of the incidents due to the passage of time, she admitted each offense and tried to explain the circumstances surrounding them.

11. As to the charges of leaving the scene of the accident, resisting arrest without violence and possession of marijuana, Petitioner explained as follows: She was helping her sister move to a new home. Petitioner was driving the rental vehicle and hit a car in the parking lot of a business. She drove away from the scene. When the police came to her home, Petitioner went into her house. At some point marijuana was found, but Petitioner-–who says she has never done drugs–- claimed it to be her sister’s drugs. Petitioner was arrested. However, she satisfied all of the conditions of probation and made all payments for costs.

12. As to the insufficient funds charge, Petitioner stated that at the time she wrote the check to pay rent for the mobile home she was living in, she had funds in the bank. However, by the time the check was submitted for payment, she had used the

    
    

    existing funds. She admitted the violation and made all payments of restitution and costs.

13. The uttering offense came when she agreed to sign a money order that did not belong to her. She yielded to the influence of nefarious friends with whom she no longer associates. Again, she admitted her culpability and made all necessary restitution to the victim.

14. Petitioner filed her application for certification as a nursing assistant to fulfill a long-time dream of working in health care. She has “changed her ways” and is very desirous of doing positive things in her life. Petitioner’s demeanor and candor at final hearing gave credence to her promise to do better in the future, if given the opportunity. Her testimony was persuasive. However, it is troublesome that Petitioner chose to blame her application errors on the fact that she was holding her child while typing the application. That “excuse” does not ring true and seems an unnecessary reason for not disclosing the crimes.

15. Nonetheless, absent further elucidation by the Board as to exactly why Petitioner’s application was denied, there is no way for Petitioner to further support her challenge to the denial other than as she did at final hearing. The Board did not challenge her reasons; it merely stood by its denial letter without further support or justification.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2015 version.

17. The general rule is that the party asserting the affirmative of an issue has the burden of presenting evidence as to that issue. Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933 (Fla. 1996),

    citing Fla. Dep’t of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). In the instant matter, Petitioner had the burden of proving, by a preponderance of evidence, that her application for certification should be approved. See Espinoza v. Dep’t of

    Bus. and Prof’l Reg., 739 So. 2d 1250 (Fla. 3rd DCA 1999).

    
    

18. Section 464.203, Florida Statutes, sets forth the requirements for certification as a certified nursing assistant. Section 464.203(1) requires an applicant to demonstrate a minimum competency to read and write, successfully pass the background screening conducted pursuant to section 415.215,

    and meet one of the requirements set out in section 464.203(1)(a)-(d).

    
    

19. Section 464.204(1) sets forth the acts that constitute grounds for denial of certification. The grounds for denial are:

    1. Obtaining or attempting to obtain certification or an exemption, or possessing or attempting to possess certification or a letter of exemption, by bribery, misrepresentation, deceit, or through an error of the Board.

       
       

    2. Intentionally violating any provision of this chapter, chapter 456, or rules adopted by the Board.

    
    

20. Petitioner did not violate this provision. Her failure to properly answer the question on the application was not done for the purpose of misleading or deceiving the Board.

21. Section 464.018(1)(c) provides that 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 or the ability to practice nursing constitutes grounds for denial of certification. The same is true as to any licensee’s profession. See

    § 456.072(1)(c), Fla. Stat.

    
    

22. Section 456.072(1) states that the acts constituting grounds for denial may result in disciplinary action or other sanctions. Subsection (2) of that statute lists the penalties that may be imposed, including: refusal to certify, certifying

    
    

    with restrictions on the person’s practice, fines, letters of reprimand, probation and others.

23. Absent any more specific reason for the Board’s denial of her application, Petitioner appears to have met her burden of proving entitlement to her certification as a nursing assistant. She explained the reasons for her actions, expressed her remorse and sorrow for those actions, and clearly showed that she had no intention of defrauding or misleading the Board in her application.

24. However, even if a sanction or penalty was to be imposed, the denial of her application would not be consistent with the evidence. At worst, Petitioner should be penalized by way of a short probationary period.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by Respondent, Department of Health, Board of Nursing, granting Petitioner, Latrice J. Walker’s, application for certification as a certified nursing assistant, with appropriate sanctions.

DONE AND ENTERED this 16th day of March, 2016, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 16th day of March, 2016.

COPIES FURNISHED:

Latrice J. Walker

454 Southwest 10th Circle Chiefland, Florida 32626

Deborah B. Loucks, Esquire Lynette Norr, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed)

Joe Baker, Jr., Executive Director Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed)

Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252

Nichole C. Geary, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)

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: 15-007254

Orders for Case No: 15-007254