STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHANIE DECELESTINO,

vs.

Petitioner,

Case No. 15-7253

BOARD OF NURSING,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on February 1, 2016, at sites in Tallahassee and Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Stephanie DeCelestino, pro se

1365 Southeast Floresta Drive Port St. Lucie, Florida 34983

For Respondent: Deborah Bartholow Loucks, Esquire

Lynette Norr, Esquire

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

STATEMENT OF THE ISSUES

The issues in this case are whether Petitioner, in response to a question on the application for licensure as a practical nurse, knowingly misrepresented a material fact by denying prior participation in an alcohol recovery program for treatment of

alcohol abuse, and, if so, whether Respondent has grounds to deny Petitioner's application.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated June 30, 2015, Respondent Board of Nursing notified Petitioner Stephanie DeCelestino that it intended to deny her application for licensure as a practical nurse. Respondent's decision was based on Ms. DeCelestino's negative answer to a question on the application inquiring whether the applicant had ever been enrolled in, required to enter into, or participated in any drug or alcohol recovery program or impaired practitioner program for treatment of drug or alcohol abuse. Respondent accused Ms. DeCelestino of answering falsely in an attempt to obtain a license by bribery, misrepresentation, or deceit.

Ms. DeCelestino timely requested a formal hearing, and, on December 18, 2015, 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 February 1, 2016, with both parties present. Ms. DeCelestino was the only witness. Respondent's Exhibit 1 was received in evidence without objection.

The final hearing transcript was filed on February 12, 2016. Proposed recommended orders were due on February 22, 2016, and each party timely filed one.

Unless otherwise indicated, citations to the official statute law of the state of Florida refer to Florida Statutes 2015, except that all references to statutes or rules defining disciplinable offenses or prescribing penalties for committing such offenses are to the versions that were in effect at the time of the alleged wrongful acts.

FINDINGS OF FACT

1. On December 10, 2014, Petitioner Stephanie DeCelestino ("DeCelestino") submitted an Initial Application for Licensure to Respondent Board of Nursing (the "Board"). Because DeCelestino is a licensed practical nurse ("LPN") in another state, she applied for a Florida LPN license by endorsement (a process which allows an applicant to avoid sitting for another examination). The Board is responsible for reviewing such applications and determining which should be certified for licensure to the Department of Health ("Department"), and which denied.

2. Under the heading "Criminal History," the application which DeCelestino completed asked a single question: "Have you EVER been convicted of, or entered a plea of guilty, nolo contendre, or no contest to, a crime in any jurisdiction other than a minor traffic offense?" DeCelestino answered, "NO."

   
   

3. Under the heading "Health History," the application which DeCelestino completed contained five questions, as follows:

   In the last five years, have you been enrolled in, required to enter into, or participated in any drug or alcohol recovery program or impaired practitioner program for treatment of drug or alcohol abuse that occurred within the past five years?

   
   

   In the last five years, have you been admitted or referred to a hospital, facility or impaired practitioner program for treatment of a diagnosed mental disorder or impairment?

   
   

   During the last five years, have you been treated for or had a recurrence of a diagnosed mental disorder that has impaired your ability to practice nursing within the past five years?

   
   

   In the last five years, were you admitted or directed into a program for the treatment of a diagnosed substance- related (alcohol/drug) disorder or, if you were previously in such a program, did you suffer a relapse in the last five years?

   
   

   During the last five years, have you been treated for or had a recurrence of a diagnosed substance-related (alcohol/drug) that has impaired your ability to practice nursing within the past five years?

   
   

   DeCelestino answered "NO" to all five questions.

   
   

4. The Department orders a criminal background check on all applicants. The results for DeCelestino suggested that she had an undisclosed criminal history. Accordingly, by letter dated

   
   

   December 23, 2014, the Department notified DeCelestino that her application might contain false information and invited her to "modify [her] response to the criminal history question" and provide "a typed self explanation of each charge" together with "all available court dispositions" among other items.

5. DeCelestino complied. By letter dated February 7, 2015, DeCelestino informed the Department (as she would later testify credibly at hearing) that she had been arrested in Tennessee on February 14, 2014, for committing a crime after "consuming large amounts of alcohol." For this offense, DeCelestino had been sentenced, on April 22, 2014, to six months' probation on the conditions that she "continue counseling" and have no contact with the victim. The mandatory "counseling" consisted of attending Alcoholics Anonymous ("AA") meetings, which DeCelestino did from April to September 2014. Later, DeCelestino voluntarily received group counseling through ADAP Counseling Services ("ADAP") in Florida, which she completed on November 9, 2014. DeCelestino disclosed these facts to the Department in her February 7, 2015, correspondence, writing: "I attended AA meetings and a strict counseling group here in Florida called Adap."

6. Together with her letter, DeCelestino furnished the Department with a copy of the Order for the Expungement of Criminal Offender Record dated November 20, 2014, by which the Tennessee court having jurisdiction over her criminal offense had

   
   

   dismissed the charge and ordered "that all PUBLIC RECORDS relating to such offense . . . be expunged and immediately destroyed." She also submitted an Application Update on which she switched her answer to "Yes" in response to the criminal history question.

7. The Board accepted DeCelestino's explanation of the criminal charge and does not currently allege that she knowingly misrepresented a material fact by denying the arrest in Tennessee, given that the record thereof had been expunged.

8. On June 30, 2015, however, the Board executed a Notice of Intent to Deny DeCelestino's application for certification as a practical nurse by endorsement, relying upon other grounds in support of such proposed action. In the notice, the Board

   alleged:

   
   

   As part of a pretrial intervention agreement, the applicant was required to attend substance abuse counseling sessions. The applicant was discharged from the sessions on or about November 9, 2014.

   
   

   The Board accused DeCelestino of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied, in response to the first health history question on the application, having participated in an alcohol recovery program for treatment of alcohol abuse that occurred within the past five years.

9. The Board's factual allegations are not entirely accurate. The counseling provided by ADAP, which DeCelestino

   
   

   completed on November 9, 2014, was not court ordered, but rather involved services that DeCelestino sought on her own. There is no evidence in the record persuasively establishing that these services were provided as part of a "drug or alcohol recovery program" for the purpose of treating "drug or alcohol abuse."1/ Perhaps more important, there is no persuasive evidence supporting a finding that DeCelestino knew that the ADAP counseling services met these criteria, even assuming that they did, which to repeat was not proven. The undersigned accepts as credible DeCelestino's testimony that she did not interpret the health history question as an inquiry about such counseling as she received at ADAP.

10. As for her court ordered attendance at AA meetings, which DeCelestino was "required to enter into," the undersigned accepts as credible her testimony that she did not consider AA to be an "alcohol recovery program . . . for treatment of drug or alcohol abuse." There is, to explain, no evidence in the record establishing the nature of AA meetings, and, although the undersigned has a general idea of what AA does given that it is a well-known organization with which most adults in the U.S. have at least a passing familiarity through common experience and exposure to the popular culture, it is not clear to the undersigned that AA constitutes an "alcohol recovery program" within the meaning of the health history question.2/ Because the question does not unambiguously inquire about AA, DeCelestino's conclusion that

    
    

    nondisclosure of her attendance at AA meetings was permissible is arguably correct and at worst an honest mistake.

11. Based on DeCelestino's credible testimony, which the undersigned credits, it is found that DeCelestino had no intention of deceiving the Board in hopes her attendance at AA meetings or ADAP counseling sessions would not be discovered. She readily disclosed this information when asked for an explanation of her criminal background, even though no issue had been raised concerning her response to the health history question. Had she intended to conceal her participation in an "alcohol recovery program," DeCelestino surely would not have mentioned AA or ADAP in her February 7, 2015, letter to the Department because she could have responded truthfully to the inquiry about her criminal charge without doing so. The order sentencing her to probation, recall, required her to "continue counseling" but said nothing about attending an "alcohol recovery program." The fact that she volunteered the information while making no attempt to update her application to conform thereto persuasively corroborates her testimony that she did not understand the health history question to be asking about AA meetings or ADAP counseling.

    Determinations of Ultimate Fact

    
    

12. DeCelestino is not guilty of attempting to procure an LPN license by knowing misrepresentations, which is a

    
    

    disciplinable offense and grounds for denial of licensure under section 464.018(1)(a), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

13. 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.

14. As the applicant for licensure, DeCelestino 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.

    
    

15. The Board, however, was required to state with particularity the reasons for denying DeCelestino's application. § 120.60(3), Fla. Stat. This it did in the Notice of Intent to Deny. The Board bears the burden of proving these allegations of wrongdoing on DeCelestino'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).

    
    

16. Section 464.018 provides in pertinent part as follows:

    
    

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

       
       

       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.

          
          

          * * *

          
          

    2. The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).

       
       

       See also § 456.072(1)(h), Fla. Stat. (making it an offense to

       
       

       attempt "to obtain, obtain[], or renew[] a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board").

17. As discussed above, the undersigned determined, based upon a preponderance of the evidence, that DeCelestino did not commit the offense defined in sections 464.018(1)(a) and 456.072(1)(h), Florida Statutes, 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.

18. The question of whether DeCelestino might be impaired as a result of alcohol use or abuse was not presented in this case, although the Board insinuates that DeCelestino could pose

    
    

    a threat to patients if licensed as a practical nurse. Without expressing an opinion regarding the possibility that DeCelestino is impaired, the undersigned notes that section 456.076 provides in relevant part as follows:

    (3) Each board and profession within the Division of Medical Quality Assurance may delegate to its chair or other designee its authority to determine, before certifying or declining to certify an application for licensure to the department, that an applicant for licensure under its jurisdiction may be impaired as a result of the misuse or abuse of alcohol or drugs, or both, or due to a mental or physical condition that could affect the applicant's ability to practice with skill and safety. Upon such determination, the chair or other designee may refer the applicant to the [impaired practitioner] consultant for an evaluation before the board certifies or declines to certify his or her application to the department. If the applicant agrees to be evaluated by the consultant, the department's deadline for approving or denying the application pursuant to s. 120.60(1) is tolled until the evaluation is completed and the result of the evaluation and recommendation by the consultant is communicated to the board by the consultant. If the applicant declines to be evaluated by the consultant, the board shall certify or decline to certify the applicant's application to the department notwithstanding the lack of an evaluation and recommendation by the consultant.

    
    

19. Nothing in this Recommended Order is intended either to facilitate or frustrate the formulation of a determination concerning DeCelestino's possible impairment for purposes of a referral to the consultant pursuant to section 456.076(3). If

the Board makes such a referral, however, and the Board thereafter declines to certify DeCelestino's application based on the consultant's recommendation (or DeCelestino's refusal to be evaluated), DeCelestino must be given another clear point of entry into a formal administrative hearing.

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 DeCelestino's application for licensure by endorsement as a practical nurse unless it determines that she might be impaired as a result of alcohol abuse, in which case a referral should be made pursuant to section 456.076(3) with further proceedings to follow in accordance therewith.

DONE AND ENTERED this 29th day of March, 2016, 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 29th day of March, 2016.

ENDNOTES

1/ The Board argues in its Proposed Recommended Order, without adequate (if any) evidential support in the record, that "ADAP is a substance abuse counseling center." ADAP's web site provides as follows:

ADAP Counseling Services' Substance Abuse Program is a therapeutic approach to addressing an individual's physical, psychological, emotional, and social

needs. In addition to stopping drug use, our primary goal is to provide the tools to function effectively in the community.

ADAP Counseling Services, Substance Abuse Treatment, http://tes- fl.com/services/substanceabuse.html (last visited Mar. 25, 2016). The undersigned is not making any findings of fact based upon this statement, which is not in the record, but simply notes that, as the statement indicates, it cannot reasonably be inferred or assumed that all counseling having some connection to the client's alcohol consumption is part of an "alcohol recovery program . . . for treatment of drug or alcohol use." There is, moreover, insufficient evidence in the record to determine whether DeCelestino actually has or had a treatable disease relating to alcohol abuse, e.g., alcohol use disorder or alcoholism, or whether her drinking was secondary to some other treatable condition, e.g., depression, for which counseling might have been sought.

2/ The Board argues in its Proposed Recommended Order, without any support in the record, that AA "is a well-known alcohol recovery program." Here is how AA describes itself:

Alcoholics Anonymous is an international fellowship of men and women who have had a drinking problem. It is nonprofessional, self-supporting, multiracial, apolitical, and available almost everywhere. There are no age or education requirements.

Membership is open to anyone who wants to do something about his or her drinking problem.

Alcoholics Anonymous®, What is A.A.?, http://www.aa.org/ pages/en_US/what-is-aa (last visited Mar. 25, 2016). The undersigned makes no findings based on this description, which is not in the record, but observes that, as the statement suggests, AA is not merely, or arguably even necessarily, an "alcohol recovery program . . . for treatment of drug or alcohol abuse."

COPIES FURNISHED:

Stephanie DeCelestino

1365 Southeast Floresta Drive Port St. Lucie, Florida 34983 (eServed)

Deborah Bartholow Loucks, Esquire Lynette Norr, Esquire

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

Nichole C. Geary, 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 32399-3252 (eServed)

Ann-Lynn Denker, PhD, ARNP, Chair Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252

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: 15-007253

Orders for Case No: 15-007253