STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2057

)

MARY LOUISE RAHMING, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 8, 1979, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

For Respondent: Mary Louise Rahming, pro se

1572 Northwest 47th Street Miami, Florida

This case was presented on a request for a formal hearing by Mary Louise Rahming on the denial of her request for renewal of her license as a licensed practical nurse on the basis that Rahming had practiced nursing without a license after her license automatically terminated.

Evidence was presented that Rahming's license automatically terminated on March 31, 1977, by operation of law pursuant to Section 464.151(1)(b), Florida Statutes, that subsequently she continued to practice nursing contrary to Section 464.151(2), and that the Board refused to reissue her license pursuant to Section 464.21(3)(e), Florida Statutes.

The issue presented is whether the license of Mary Louise Rahming should be reissued.

FINDINGS OF FACT

1. Mary Louise Rahming was a licensed practical nurse, who held a license issued by the Florida State Board of Nursing until March 31, 1977.

   
   

2. Rahming failed to renew her license by March 31, 1977, and her license was automatically terminated effective April 1, 1977.

3. Rahming continued in her employment as a licensed practical nurse from April 1, 1977, until July 28, 1978, when she sought to renew her license. Since July, 1978, Rahming has not practiced nursing.

   
   

4. Rahming's request for reinstatement of her license was denied by the Board of Nursing on August 25, 1978, because Rahming had practiced without a license after her license was terminated.

   
   

   CONCLUSIONS OF LAW

   
   

5. The letter from the State Board of Nursing to Mary Louise Rahming states the grounds of the Board's denial of her request for reinstatement of her license as a licensed practical nurse. The grounds for the denial are stated as her violation of Section 464.151(1) and (2), Florida Statutes. While this letter is sufficient to frame the grounds for the denial, technically only Section 464.151(2) states a provision Rahming could violate. Subsection (1) only sets forth certain conditions relating to the licenses issued by the Board which are not capable of being violated. Section 464.151(1)(b) provides for the automatic termination of a license which is not renewed subject to the other provisions of Section 464.151 and Section 464.21.

   
   

6. Section 464.151(1)(c) provides that any licensee whose license has been terminated for failing to renew may be reinstated by presenting evidence that the licensee meets the current standards and upon payment of the late fees provided. This creates a right to reinstatement upon the stated conditions in the absence of good cause for denial.

   
   

7. Section 464.151(2) states in pertinent part:

   
   

   Any person practicing nursing as a . . . licensed practical nurse during the time license is terminated shall be considered

   an illegal practitioner and shall be subject to the penalties provided herein for violation of this chapter.

   
   

8. Section 464.24 and Suction 464.21(3) both set forth penalties for practicing without a license. Section 464.24(3) is a criminal provision, and the Board lacks authority to adjudicate a violation of it. Section 464.21(3) provides that the Board may discipline any person convicted of a violation of the statutes relating to the practice of nursing. The use of the term "convicted" would apparently authorize the Board to discipline any licensee convicted by a criminal court or found guilty by the Board of violating the non- criminal provisions of the law relating to nursing as provided in Section 464.21(1).

   
   

9. Section 464.21(1) provides that the Board is authorized to deny a license to any applicant or discipline any holder of a license whose default has been entered or who has been heard and found guilty by the Board of various conduct to include willfully or repeatedly violating any provision of Chapter

   464 or the laws of Florida.

   
   

10. Regarding the practice of unlicensed persons, several things are apparent from the statutes referenced above. First, the illegal practitioner who has never been licensed may not be subjected to the penalties of Section 464.151(2), because it is applicable only to persons whose licenses have been terminated. Because the Board lacks authority to adjudicate a violation of

    Section 464.21(1)(c), which is a criminal statute, in the absence of a conviction for practicing without a license by a criminal court, the Board may not deny a license to a person who applies for licensure and has never been licensed but who has practiced without a license.

    
    

11. The Board may deny to a person whose license has terminated a license as provided in Section 464.21. However, it may he argued that such a denial may only occur after a hearing because the Board may only refuse to reissue upon conviction of a violation and may only convict after a hearing by the Board. Support for this construction of the statute is found in the fact that Section

    464.151 speaks in terms of reinstatement, not reapplication; the fact that the statutes place the burden on the Board to prove the grounds for denial as opposed to placing the burden on the applicant to prove his or her entitlement to the license; and the fact that a substantial difference exists between the Board's authority to deal with the unlicensed practice of persons who have never been licensed and those who have been licensed.

    
    

12. Conversely, it can be argued that a person requesting reinstatement stands in the position of any applicant and, although the burden rests upon the Board to show why the applicant should be denied, it may refuse licensure until a hearing is held pursuant to Section 120.57 on the grounds for denial.

    
    

13. In either event the Board is vested with broad discretion in the matter of reinstating a terminated licensee, which is necessary because under the statutory scheme the Board retains jurisdiction to review the acts of its former licensees performed while in an unlicensed status prior to relicensing. However, in exercising this discretion the Board should carefully weigh the basis for the individual's failure to renew and the acts of the individual while in an unlicensed status. In those cases in which the individual has sought to use the unlicensed status to avoid the Board's jurisdiction, illegal practice should be severely penalized. On the other hand, where the individual failed to renew through negligence and then continued to practice nursing while adhering to the generally accepted standards of nursing practice the offense is more technical in its form.

    
    

14. It can be argued that the failure to pay the fee is not a technical violation because of the loss of revenue to the Board, and that practice without a license potentially exposes an employer to liability. However, the late fee imposed by statute is sufficient to insulate the State from financial loss, and employers may adequately protect themselves from liability by merely requiring their nursing personnel to show proof of registration following the annual renewal date as a condition of continued employment. The Board has met any obligation it has to employers in issuing physical proof of licensure to its licensees.

RECOMMENDATION

Whether the statute is construed to entitle an individual whose license has been terminated for failure to renew to a license pending a hearing, or construed to entitle the applicant to a hearing on the grounds for denial after notice of the Board's initial determination, the facts in this case reveal that Rahming applied for licensure on July 26, 1978, and has not practiced since that date when she became aware she was in violation of the law. The period of the denial of the right to practice between the applicant's request for reinstatement and the Board's final action must be considered in weighing the penalty. In the instant case, this period of defacto suspension has been nearly nine months. Although many delays have occurred in this case which have

resulted from Rahming's failure to keep the Board advised of her current address, this period of suspension should be considered in any penalty ultimately assessed.

Based upon the foregoing Findings of Fact and the Conclusions of Law, and considering the matters in mitigation, the Hearing Officer recommends that the Board reissue the license of Mary Louise Rahming, considering the period she has not been able to practice during the pendency of this case as sufficient penalty for her violation of Section 464.151(2).

DONE and ORDERED this 16th day of March, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mary Louise Rahming 5218 NW 5th Avenue Miami, Florida

Julius Finegold, Esquire 1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

Geraldine B. Johnson, R. N. Board of Nursing

6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211

Docket for Case No: 78-002057

Orders for Case No: 78-002057