STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUBY MOUZON,

vs.

Petitioner,

Case No. 14-4057

BOARD OF NURSING,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on

November 4, 2014, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Ruby J. Mouzon, pro se

309 Northwest First Avenue Hallendale, Florida 33009

For Respondent: Lee Ann Gustafson, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The issues in this case are whether Petitioner, in response to a question on the application for licensure as a certified nursing assistant, intentionally denied the fact that she had

been convicted of crimes; and, if so, whether Respondent has grounds to deny Petitioner's application.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated June 11, 2014, Respondent Board of Nursing notified Petitioner Ruby Mouzon that it intended to deny her application for licensure as a certified nursing assistant. Respondent's decision was based on

Ms. Mouzon's negative answer to a question on the application inquiring whether the applicant had ever been convicted of a crime, which Ms. Mouzon in fact had been. Respondent accused Ms. Mouzon of attempting to obtain a license by bribery, misrepresentation, or deceit.

Ms. Mouzon timely requested a formal hearing, and on August 28, 2014, Respondent referred the matter to the Division of Administrative Hearings, where an Administrative Law Judge was assigned to conduct a formal hearing.

The hearing took place as scheduled on November 4, 2014, with both parties present. Ms. Mouzon was the only witness. Respondent's Exhibit 1 was received in evidence without objection.

The final hearing transcript was filed on November 25, 2014. Proposed recommended orders were due on December 5, 2014. Neither party filed one.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2014 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Ruby Mouzon ("Mouzon") wants to become a certified nursing assistant ("CNA"). Because she is not currently certified in another state, to accomplish this goal Mouzon must submit an application for certification by examination to Respondent Board of Nursing (the "Board"). The Board is responsible for reviewing such applications and determining whether applicants are eligible to take the nursing assistant competency examination, which consists of a written test and a skills-demonstration test. Successful completion of both portions is necessary to obtain a CNA license by examination.

2. On February 15, 2012, Mouzon submitted her first application to take the CNA examination. She truthfully answered a question on the application inquiring whether the applicant has a criminal record. This prompted the Board to request additional information regarding the judicial dispositions of her several arrests. Mouzon provided the details concerning her convictions for carrying a concealed firearm (1988 and 1992), battery (1992), and aggravated assault (1998). The Board considered Mouzon's application at its meeting on June 6, 2012, and authorized her to sit for the examination.

   
   

3. Mouzon passed the written test in 2012 but failed the clinical skills test. For the next two years, she would be eligible to re-take the clinical skills test without taking the written test again. Therefore, on March 13, 2014, Mouzon submitted her second application for licensure as a CNA, this time as a "retester."

4. As before, the application included a question which sought information about the applicant's criminal convictions, if any. It provided as follows:

   Have you EVER been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? . . . *If you answered YES, please be prepared to create a typed or printed letter with arrest dates, city, state, charges and final dispositions and be prepared to send it to the Board Office upon request. (Do not send this information with your application for examination.)

   
   

   Mouzon, who with her first application had provided all of the relevant information pertaining to her various criminal convictions and thereafter been approved by the Board to take the examination in 2012, mistakenly interpreted the question as seeking merely an update to her previous application. Because she did not have any convictions besides the old ones she had already reported to the Board, Mouzon answered, "No."

5. Mouzon's explanation for this objectively false answer is probably true. Based on her credible testimony, which the

   
   

   undersigned credits, it is found that Mouzon had no intention of deceiving the Board in hopes her criminal record would not be discovered. Mouzon knew, after all, that the Board, having considered her criminal convictions in 2012 and deemed them not to be disqualifying, was well aware of her background. Thus, she had no reason intentionally to omit or attempt to conceal these facts, nor anything to gain by doing so. Her belief that she needed only to update her previous application, although incorrect, was an honest mistake, more likely than not.

6. On April 10, 2014, a member of the Board's staff named Sara Rotunda sent Mouzon a letter requesting additional information regarding the judicial dispositions of her several arrests, together with three to five letters of recommendation. Mouzon contacted Ms. Rotunda to remind her that, in connection with an application in 2012, she (Mouzon) had supplied the Board with all of the details concerning her criminal convictions.

   Ms. Rotunda checked the Board's files and found the information Mouzon had provided previously. Satisfied that Mouzon had complied with the Board's request for information regarding the convictions, Ms. Rotunda wrote again to Mouzon on April 15, 2014, but now asked only for letters of recommendation, which Mouzon submitted.

7. On June 11, 2014, the Board executed a Notice of Intent to Deny Mouzon's application to re-take the CNA clinical skills

   
   

   test. The Board accused Mouzon of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied having any criminal convictions in response to the relevant question on the application.

   Determinations of Ultimate Fact

   
   

8. Mouzon is not guilty of attempting to procure a CNA license by misrepresentation or deceit, which is a

   disciplinable offense and grounds for denial of licensure under section 464.204(1)(a), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

10. As the applicant for licensure, Mouzon bears the ultimate burden of proving by a preponderance of the evidence that her application should be approved. Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981);

    § 120.57(1)(j), Fla. Stat.

    
    

11. The Board, however, was required to state with particularity the reasons for denying Mouzon's application,

    § 120.60(3), which it did in the Notice of Intent to Deny. The Board bears the burden of proving these allegations of wrongdoing on Mouzon's part. See M.H. v. Dep't of Child. & Fam. Servs., 977 So. 2d 755, 761 (Fla. 2d DCA 2008)("[I]f the

    
    

    licensing agency proposes to deny the requested license based on specific acts of misconduct, then the agency assumes the burden of proving the specific acts of misconduct that it claims demonstrate the applicant's lack of fitness to be licensed."); Dep't of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932, 934-935 (Fla. 1996).

12. Section 464.204 provides in pertinent part as follows:

    
    

    1. The following acts constitute grounds for which the board may impose disciplinary sanctions as specified in subsection (2):

       
       

       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. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       
       

       1. Denial, suspension, or revocation of certification.

          
          

          See also § 456.072(1)(h), Fla. Stat.

          
          

13. As discussed above, the undersigned determined, based upon a preponderance of the evidence, that Mouzon did not commit the offense defined in section 464.204(1)(a), as charged in the Notice of Intent to Deny. Due to this dispositive finding of

fact, it is not necessary to render additional conclusions of

law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order approving Mouzon's application for licensure by examination as a certified nursing assistant.

DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2014.

COPIES FURNISHED:

Ruby J. Mouzon

309 Northwest First Avenue Hallendale, Florida 33009

Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed)

Jennifer A. Tschetter, General Counsel Department of Health

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

Joe Baker, Jr., Executive Director Board of Nursing

Department of Health

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

Lavigna A. Kirkpatrick, BSN, RN, Chair Department of Health

4052 Bald Cypress Way Tallahassee, Florida 32399

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: 14-004057

Orders for Case No: 14-004057