STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIEN CHARLES MCGLYNN, )

)

)

Petitioner, )

)

vs. ) Case No. 97-3104

)

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on October 1, 1997, by video teleconference before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings. The Administrative Law Judge, Respondent's counsel, and Respondent's witness were located in Tallahassee, Florida. Petitioner and his counsel were located in Jacksonville, Florida.

APPEARANCES

For Petitioner: Scott F. Mitchell, Esquire

One Independent Drive, Suite 2202 Jacksonville, Florida 32202

For Respondent: Lee Ann Gustafson, Esquire

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

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied Petitioner's application for licensure by endorsement to practice as a registered nurse in the state of Florida.

PRELIMINARY STATEMENT

By order dated March 20, 1997, Respondent Department of Health, Florida Board of Nursing (Respondent), denied Petitioner Brien Charles McGlynn's application for licensure by endorsement to practice as a registered nurse in the state of Florida.

Petitioner filed a Petition for Formal Hearing on April 16, 1997. Respondent referred this matter to the Division of Administrative Hearings on July 9, 1997.

The parties filed a joint response to the Initial Order on July 25, 1997. The undersigned subsequently issued a Notice of Video Hearing and Order of Instructions scheduling this matter for formal hearing on October 1, 1997.

During the hearing, the parties offered Joint Exhibit 1, which was admitted into evidence. The undersigned officially recognized exhibits identified as P3 and R45 as Chapter 464, Florida Statutes (1995).

Petitioner testified on his own behalf and presented the testimony of one witness. Petitioner offered documents identified as P2 and P4, which were admitted into evidence.

Respondent presented the testimony of one witness.

Respondent offered documents identified as R7, R8, and R11-R44, which were admitted into evidence.

During the hearing, the undersigned reserved ruling on the admissibility of Petitioner's composite exhibit, P1. This

exhibit consists of excerpts from 12 applications for

professional licensure other than nursing licensure.

Respondent's objection that Petitioner's Exhibit P1 is irrelevant is hereby sustained.

During the hearing, the undersigned reserved ruling on the admissibility of Respondent's response to Petitioner's First Interrogatories, Interrogatory Number 9. The response to the interrogatory indicates that the Board of Nursing was planning to revise Question 6A of the nursing licensure application as set forth below in paragraph 7. Respondent's objection that the response to Interrogatory Number 9 is irrelevant is hereby overruled.

The court reporter filed the transcript of the proceeding on October 30, 1997. Respondent filed its proposed recommended order on November 14, 1997. Petitioner's proposed recommended order was filed on November 17, 1997.

FINDINGS OF FACT

1. In June of 1980, Petitioner was vacationing in Escambia County, Florida. While he was there, he was arrested for Driving Under the Influence of Liquor (DUI). After his arrest, Petitioner was taken to a police station where he waived his right to an attorney and submitted to a Breathalyzer test. Petitioner was held at the police station until a family member picked him up several hours later. Petitioner posted a $100 bond to secure his release from police custody.

2. Petitioner pled guilty and was convicted of DUI in July of 1980. Petitioner was ordered to pay a fine in the amount of

   $167.50. His driver's license was suspended for 90 days. He was nineteen years old at the time.

3. Petitioner was in the United States Navy for 16 years, beginning in November of 1980. Initially, Petitioner received training as a urology technician and an operating room technician. Later he participated in the Medical Enlisted Commissioning Program, which allowed him to complete his bachelor's degree in nursing.

4. Petitioner served as an ensign the last five years of his naval career, during which he received several security clearances. Petitioner routinely disclosed the existence of his previous DUI when questioned by the Navy.

5. Petitioner was medically retired from the armed forces in September of 1996. He filed an application for licensure by endorsement as a nurse with Respondent in August of 1996. At that time, Petitioner was already licensed as a registered nurse in the state of Rhode Island.

6. Since October of 1996, Petitioner has worked as the Director for Risk and Quality Management at Gulf South Health Plans in Louisiana. Petitioner is also licensed to practice nursing in the state of Louisiana.

7. Question 6A of the Florida application for nursing licensure states as follows:

   6A. ARREST HISTORY

   Have you ever been convicted or have you entered a no contest or guilty plea -- regardless of adjudication -- for any offense other than a minor traffic violation?

   
   

   Petitioner answered this question on his application by checking the block marked "NO." Petitioner filed his application with Respondent on August 2, 1996, without disclosing his arrest and conviction for DUI.

8. Respondent's routine check with the Florida Department of Law Enforcement revealed Petitioner's 1980 arrest and conviction for Driving Under the Influence. Respondent subsequently requested additional information from Petitioner relating to his DUI. Respondent furnished Petitioner with all requested information.

9. Petitioner did not knowingly or willfully fail to disclose his arrest and conviction for DUI. At the time he filed his application, Petitioner believed his 1980 DUI conviction constituted a "minor traffic offense." He did not understand the question on the licensure application to require the reporting of a DUI conviction.

10. Question 6A on Petitioner's application does not state whether an applicant should disclose all misdemeanors as well as felonies. The question is confusing and misleading.

11. From February 1992 through June 1997, Respondent denied

    
    

    392 applicants for nursing licensure because they had a criminal conviction or failed to disclose one or more criminal

    convictions. Respondent was able to locate the files of 287 of

    those applicants. Of the 287 applicants, 183 failed to disclose crimes other than DUI or criminal traffic charges. Ninety-four applicants failed to disclose DUI or criminal traffic violations.

12. After Petitioner filed his application, Respondent approved a revision to the language of Question 6A. The revised language for the question reads as follows:

    Have you ever been found guilty of, or pled guilty or no contest to, any charge other than a minor traffic offense? You must include all misdemeanors and felonies even if adjudication was withheld.

    
    

    Respondent decided to make this change due to the high percentage of applicants who failed to disclose convictions for DUI. Respondent wanted to make the question easier to understand.

13. Respondent has never denied licensure to an applicant solely as a result of an applicant's previous DUI conviction.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Section 120.57, Florida Statutes.

15. Petitioner has the burden of proving his eligibility for licensure by a preponderance of the evidence.

    Rule 28-107.003(3), Florida Administrative Code (April 1, 1997). Balino v. Department of Health and Rehabilitative Services,

    348 So. 2d 349 (Fla. 1st DCA 1977).

    
    

16. Section 464.009, Florida Statutes, regulates licensure by endorsement. That section requires, inter alia, that each

    applicant file an application for licensure.

17. Pursuant to Section 464.018(2), Florida Statutes, the Respondent may refuse to certify that an applicant is eligible for licensure if the applicant is guilty of any of the grounds set forth in Section 464.018(1), Florida Statutes.

18. Respondent alleges that Petitioner violated Sections 464.018(1)(a) and 464.018(1)(c), Florida Statutes, which state as follows:

    1. The following acts shall be grounds for disciplinary action set forth in this section:

       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.

          * * *

          (c) Being found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing.

          
          

19. Section 464.018(1)(a), Florida Statutes, requires a "knowing misrepresentation." The greater weight of the evidence here indicates that Petitioner did not intentionally, purposefully, or willfully fail to disclose his seventeen-year- old DUI conviction. To the contrary, Question 6A in the application was confusing and subject to differing interpretations.

20. As to Section 464.018(1)(c), Florida Statutes, a conviction for DUI can relate in some cases to the practice of nursing or to the ability to practice nursing. However, there is no evidence that Petitioner's conviction for DUI in 1980 is in

any way related to his ability to practice nursing in 1997. Petitioner has demonstrated his ability to practice nursing during his lengthy military service and his current occupation as a Director for Risk Management at a health facility in Louisiana.

RECOMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order finding that Petitioner did not violate Sections 464.018(1)(a) and 464.018(1)(c), Florida Statutes, and directing its staff to continue to process Petitioner's application for licensure by endorsement as a registered nurse.

DONE AND ORDERED this 26th day of December, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1997.

COPIES FURNISHED:

Scott F. Mitchell, Esquire Lester and Mitchell, P.A.

One Independent Drive, Suite 2202 Jacksonville, Florida 32202

Lee Ann Gustafson, Esquire

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

Marilyn Bloss, Executive Director Department of Health

Board of Nursing

4080 Wookcock Drive, Suite 202

Jacksonville, Florida 32207

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire Department of Health Building 6, Room 102-E 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 97-003104

Orders for Case No: 97-003104