STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERTO VIERA, )

)

Petitioner, )

)

vs. ) Case No. 85-1483

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 27, 1985, in Coral Gables, Florida. The parties completed their post-hearing submissions on January 2, 1986.

Petitioner, Alberto Viera, was represented by Thomas F. Pepe, Esquire, Coral Gables, Florida and Respondent, Department of Professional Regulation, Board of Nursing, was represented by Deborah D. Hart, Esquire, Tallahassee, Florida.

Respondent denied Petitioner's application for licensure by endorsement as a registered nurse, and Petitioner timely requested a formal hearing regarding that denial. Accordingly, the issue for determination is whether Petitioner is eligible for licensure by endorsement in Florida.

Petitioner testified on his own behalf and presented the testimony of Fermin Bello, Hector L. Gonzalez, and Carlos Toledo. The deposition testimony of Carolyn Bergeron was admitted as Respondent's Exhibit numbered 1. Additionally, Joint Exhibits numbered 1-9 were admitted in evidence.

Both parties submitted proposed findings of fact in the form of a proposed recommended order. A ruling on each proposed finding of fact appears in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was born in Cuba and came to the United States in the Mariel boatlift in 1980.

   
   

2. Petitioner applied for licensure by endorsement as a registered nurse in Florida in November, 1983, based upon his nursing education received in Cuba at a military hospital. His application alleged a graduation date of August 21, 1968. Petitioner was initially approved for licensure by endorsement pending completion of a refresher course.

   
   

3. Subsequent to that approval, the Board of Nursing determined additional documentation would be required from applicants whose only substantiation of a Cuban nursing education had been provided by the Cuban nurses in Exile, as had Petitioner's. Petitioner submitted to the Board the affidavit of an employer in Cuba and the affidavits of Fermin Bello and Alejandro Gonzalez. Petitioner appeared at a meeting of the Board of Nursing on October 16-17, 1984, for consideration of the additional information and of his application.

   
   

4. On October 17, 1984, the Board of Nursing voted to deny Petitioner's application for licensure by endorsement due to his failure to provide competent substantial evidence of Cuban licensure.

   
   

5. In its review of Petitioner's application, the Board questioned Petitioner's date of graduation due to inconsistent statements contained in the documents provided by Petitioner, namely, a sworn statement given to the United States Department of Justice Immigration and Naturalization Service on May 16, 1980, and Petitioner's application for employment at Hialeah Convalescent Home completed by Petitioner on March 29, 1982. The INS statement does not reflect graduation from any nursing school, while it appears from his employment application that Petitioner graduated from nursing school in 1979. The date of graduation of a Cuban nurse is relevant to the Board due to its ability to rely on the education of Cuban nurses graduated during certain time periods.

   
   

6. The conflict in Petitioner's alleged date of graduation, if any, became even more pronounced at the final hearing in this cause as a result of the exhibits stipulated into evidence and the testimony presented by Petitioner. For example, the sworn statement given to the INS, while failing to reflect graduation from any nursing school, states only that Petitioner attended nursing school somewhere during the time period between 1973 and 1977, states that Petitioner worked as a "soldier-nurse" while in the military service between 1967 and 1971, and states for the

   five years preceding that statement Petitioner's employment was as a maintenance foreman. While Petitioner's application for employment at Hialeah Convalescent Home states that he graduated from nursing school in 1979, he testified at the final hearing that he graduated from nursing school in 1968. As vague as Petitioner's graduation date from nursing school is his licensure as a nurse in Cuba. Although he testified that he was licensed when he graduated in 1968 by virtue of being given a "certificate diploma" and also that he was licensed in 1970 by virtue of having been given an ID card, in his application for licensure filed with the Board of Nursing Petitioner answered "No" to the question "Do you now hold or have you ever held a license to practice nursing (registered or practical) in Florida, in any other state, or in any other jurisdiction or country?".

   Similarly, on his application for licensure with the Board of

   Nursing Petitioner denied ever having been arrested regardless of adjudication for any offense other than a minor traffic violation. At the final hearing and at the time he gave his sworn statement to the Immigration and Naturalization Service, however, Petitioner freely spoke of being arrested and spending time in jail as a result of attempting to blow up a bridge in order to kill a commandant. Petitioner further told the INS that he was not sentenced for that crime because the authorities believed him to be crazy. Petitioner also told the INS that he spent 10 months in jail in 1970 while he testified at the final hearing that he spent 18 months in jail.

   
   

7. Petitioner testified at the final hearing in this cause in Spanish through the services of an interpreter. The one attempt to obtain Petitioner's testimony in English was unsuccessful and more difficult than is reflected by the transcript of proceedings filed herein. Although Petitioner's application for employment wit Hialeah Convalescent Home states that he reads, writes and speaks English fluently, that representation is clearly not true, and Petitioner's command of the English language is highly questionable.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

9. Section 464.009(1)(b), Florida Statutes, provides that Respondent shall issue a license by endorsement to an applicant who:

   
   

   Meets the qualifications for licensure in s.

   464.008 and has successfully completed a state, regional, or national examination

   which is substantially equivalent to or more stringent than the examination given by the department.

   
   

10. Pursuant to that statutory mandate, the Board of Nursing has encated a rule which provides:

    
    

    A person licensed in the Republic of Cuba prior to December 31, 1961 shall be presumed to have successfully completed an examination equivalent to the one given in licensure by endorsement when he or she has successfully completed a program which is given in an institution of higher learning, is intended to assure current competency of the applicant, and is approved by the Board. Section 210-8.26(5), Florida Administrative Code.

    
    

11. Prior to its amendment in 1984, the rule provided the presumption to those licensed in Cuba prior to June 17, 1969. The parties have stipulated that the prior rule applies to Petitioner. Accordingly, Petitioner bears the burden of proving his licensure prior to June 17, 1969.

    
    

12. A careful review of the documents submitted by Petitioner to the Board and later admitted in evidence at the final hearing in this cause when compared against his testimony and that of his witnesses leaves little to form the basis for any findings of fact regarding Petitioner's personal, educational, or employment history. In short, Petitioner's testimony is so fraught with inconsistencies and conflicts that it cannot be said to constitute competent evidence let alone substantial competent evidence. Similarly, the testimony of the two witnesses presented by Petitioner to verify his graduation from nursing school and licensure as a nurse in Cuba in 1968 is incredible. The only remaining evidence supportive of Petitioner's case, a "To Whom It May Concern" letter, must also fail. Although Petitioner testified that he obtained the employment letter through a classmate after Petitioner had come to the United States and that the classmate obtained that letter and mailed it to Petitioner for presentation to the Board, the date of the letter itself reflects that it predates Petitioner's arrival in the United States: the letter is not sworn to or notarized and the letter is incapable of authentication. Petitioner's explanation that the inconsistencies in his INS statement were due to fatigue and that the dates on his application for employment are erroneous because of his misunderstanding, even if a legal defense, is legally insufficient as an explanation for the numerous conflicts in his testimony at the final hearing.

    Petitioner has failed to meet his burden of proof that he was eligible for licensure by endorsement by virtue of proving that he was licensed to practice nursing in Cuba prior to June 17, 1969.

    
    

13. Additionally, Section 464.009 requires that an applicant for licensure by endorsement meet the qualifications contained in Section 464.008, Florida Statutes, which regulates licensure by examination. One of the requirements for licensure by examination is that the applicant have the ability to communicate in the English language. Petitioner has failed to prove that he meets this qualification which is statutorily required for either licensure by endorsement or for licensure by examination.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement as a registered nurse in Florida.

DONE and RECOMMENDED this 17th day of April, 1986, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1986.

COPIES FURNISHED:

Deborah D. Hart

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Thomas F. Pepe, Esquire Penthouse 1230

Barnett Bank Building 2600 Douglas Road

Coral Gables, Florida 33134

Judie Ritter, Executive Director Board of Nursing

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32202

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

APPENDIX

Petitioner's Proposed Finding of Fact numbered 1 has been adopted as modified to conform with the evidence.

Petitioner's Proposed Findings of Fact numbered 2 and 3 have been rejected as not being supported by the evidence.

The following Proposed Findings of Fact of Respondent have either been adopted verbatim or have been adopted as modified to conform with the evidence, style. or accuracy: 1, 2, 3, and 5.

The following Proposed Findings of Fact of Respondent have been rejected as not constituting Findings of Fact but as constituting argument of counsel, conclusions of law, or recitations of the testimony: 4, and 6-9.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF NURSING

ALBERTO VIERA,

Petitioner,

vs. Case No. 85-1483

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF NURSING,

Respondent.

/

ORDER

THIS CAUSE came before the Board of Nursing on June 4, 1986, in Jacksonville, Florida, for final agency action. A Recommended Order was forwarded to the Board pursuant to Section 120.57, Florida Statutes, following formal hearing requested by Petitioner on the Board's denial of Petitioner's application for licensure as a registered nurse by endorsement. A copy of the Recommended Order is attached to and by reference made a part of this Order.

Petitioner was duly notified of the hearing and was not present, either personally or through counsel.

FINDINGS OF FACT

The Board adopts the Findings of Fact of the Recommended Order.

CONCLUSIONS OF LAW

The Board adopts the Conclusions of Law of the Recommended Order.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, the Board accepts the Recommendation of the Hearing Officer. It is therefore

ORDERED that Petitioner's application for licensure as a. registered nurse by endorsement is hereby DENIED.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal, within thirty (30) days of the date this Order is filed.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE and ORDERED this 23rd day of June, 1986.

Jessie Trice, Chairman Florida Board of Nursing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the forgoing Order has been sent by U. S. Mail to ALBERTO VIERA, 113 Southwest 121st Street, Miami, Florida 33174, to LINDA M. RIGOT, ESQUIRE, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301 and to THOMAS F. PEPE, ESQUIRE, Penthouse 1230, Douglas Centre, 2600 Douglas Road, Coral Gables, Florida 33134, at or before 5:00 p.m., this 23rd day of June, 1986.

Judie Ritter Executive Director

Docket for Case No: 85-001483

Orders for Case No: 85-001483