STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGUERITE ARNETTE TOOTLE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-916

)

BOARD OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Port St. Joe, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on July 16, 1979. Respondent's counsel was not present. When contacted, he advised that he had not received amended notice of hearing. Counsel for the parties then stipulated certain facts over the telephone.

Respondent's counsel took the position that no other facts were relevant, but agreed that the hearing officer could take testimony on other matters, including petitioner's training since 1972, over respondent's objection on grounds of relevancy only. Petitioner was represented by counsel at the hearing.

APPEARANCES

For Petitioner: Cecil G. Costin, Jr., Esquire

413 Williams Avenue

Port St. Joe, Florida 32456

For Respondent: Julius Finegold, Esquire

1107 Blackstone Building

Jacksonville, Florida 32202

Petitioner seeks re-registration as a licensed practical nurse. When respondent denied her application by letter dated March 15, 1979, she filed a petition for hearing.

FINDINGS OF FACT

1. Petitioner has been registered with respondent as a licensed practical nurse since September 25, 1951. She worked as a licensed practical nurse until 1972, which was the last year she paid any annual renewal fee. She assumed that her license was in an inactive status after 1972, although she never made a written request that it be placed on the inactive list. She was unaware of any requirement to pay annual renewal fees after 1972.

   
   

2. Petitioner applied for reinstatement of her license in February of 1979. Respondent denied this application on the ground that petitioner "did not complete a program approved by the Board for the preparation of Licensed Practical Nurse." Petitioner's exhibit No. 1.

3. Petitioner has completed an approved 4-year high school course of study. Petitioner's exhibit No. 2. In addition, petitioner has, since early February of 1979, completed 46 1/2 hours of continuing education in a wide range of nursing subjects. Petitioner's exhibit No. 3. Petitioner enjoys the confidence of physicians in her community, one of whom described her as "industrious, conscientious and reliable." Petitioner's exhibit No. 2.

   
   

   CONCLUSIONS OF LAW

   
   

4. Respondent's denial of Petitioner's application apparently proceeds on the theory that Section 464.151(1)(c), Florida Statutes (1977), requires petitioner to meet the criteria set forth in Section 464.111, Florida Statutes (1977) for applicants for initial licensure. Except for "complet[ing] a program approved by the board for the preparation of licensed practical nurses," Section 464.111(3), Florida Statutes (1977), petitioner, who has some two decades of experience as a nurse, meets the criteria laid down for initial applicants in Section 464.111, Florida Statutes (1977).

   
   

5. The failure of a nurse who holds an original license or a renewal certificate issued pursuant to existing law "to renew the license before the expiration date shall automatically terminate the license. . ." Section 464.151(b), Florida Statutes (1977). At the time petitioner left off paying annual renewal fees, however, the statute then in force provided:

   
   

   1. Failure to renew [a] license [like petitioner's] by January 31 of each year, as provided in this chapter, shall automatically suspend the license of the licensee failing to renew, except as hereinafter specifically provided in this section and in 464.21.

   2. All inactive or nonresident nurse, duly licensed under the provisions of this chapter, upon written request shall be placed on an inactive list without cost. Any such nurse placed on the inactive list may renew his or her license upon payment of $4.00 renewal fee, and shall not be required to pay the fee required of those allowing their licenses to lapse.

   3. Any licensee who allows said license to lapse by failing to renew the license as provided herein may be reinstated by the board upon satisfactory explanation for such failure to renew said license and upon the payment of a fee of $30.00for a registered nurse and

      $20.00 for a licensed practical nurse. . . Section 464.151(1), Florida Statutes (1971) (emphasis supplied).

      
      

      When petitioner failed to renew by January 31, 1973, therefore, her license was "automatically suspend[ed]," section 464.151 (1)(h), Florida Statutes (1971), subject to being "reinstated by the board upon satisfactory explanation for such failure to renew. . ." Section 464.151(1)(d), Florida Statutes (1971).

      
      

6. Subsection (1)(c) of Section 464.151, Florida Statutes (1977), provides:

   Any licensee who allows the license to terminate by failing to renew as provided herein may be reinstated by providing evidence satisfactory to the board that the licensee meets the current standards for practice as defined in this chapter and upon payment of a fee. . . (emphasis supplied)

   
   

   This language does not apply in the present case because petitioner's license has never been terminated. No statute enacted subsequent to the suspension of her license has purported to transform the suspension into a revocation or to alter the terms of the suspension. Respondent has instituted no proceedings with a view toward accomplishing such a result. Such proceedings would presumably be necessary. See State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla 1973).

   
   

7. Petitioner's mistaken belief that her license reverted to an inactive status automatically upon her failure to pay the $20.00 annual renewal accounts for her failure to make a written request that the license be treated as inactive and for her failure to pay the $4.00 annual renewal fees. Her ignorance of the law is a "satisfactory explanation" within the meaning of Section 464.151(1)(d), Florida Statutes (1971). Her suspension should, therefore, be terminated, upon payment of a fee of $20.00.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent grant petitioner's request for re-registration as a licensed practical nurse.

DONE AND ENTERED this 14th day of August, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Cecil G. Costin, Jr., Esquire

413 Williams Avenue

Port St. Joe, Florida 32456

Julius Finegold, Esquire 1107 Blackstone Building

Jacksonville, Florida 32202

Docket for Case No: 79-000916

Orders for Case No: 79-000916