00-003198 Beverly Umilta Neblett vs. Department Of Health, Board Of Nursing
 Status: Closed
Recommended Order on Monday, December 18, 2000.


View Dockets  
Summary: Applicant not entitled to licensure by endorsement based on score she received on 1980 licensure examination for Canadian practical nurses.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8BEVERLY UMILTA NEBLETT, )

12)

13Petitioner, )

15)

16vs. ) Case No. 00-3198

21)

22DEPARTMENT OF HEALTH, )

26BOARD OF NURSING, )

30)

31Respondent. )

33_________________________________)

34RECOMMENDED ORDER

36Pursuant to notice, a hearing was held in this case in

47accordance with Section 120.57(1), Florida Statutes, on

54November 2, 2000, by video teleconference at sites in Fort

64Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a

73duly-designated Administrative Law Judge of the Division of

81Administrative Hearings.

83APPEARANCES

84For Petitioner: Alicia M. Phidd, Esquire

90Post Office Box 260004

94Pembroke Pines, Florida 33026

98For Respondent: Lee Ann Gustafson, Esquire

104Office of the Attorney General

109Department of Legal Affairs

113The Capitol, Plaza Level 01

118T allahassee, Florida 32399-1050

122STATEMENT OF THE ISSUE

126Whether Petitioner is entitled to licensure by endorsement

134pursuant to Section 464.009, Florida Statutes, as implemented by

143Rule 64B9-3.008.

145PRELIMINARY STATEMENT

147By letter dated July 26, 2000, to the Department of Health,

158Board of Nursing (Board), Petitioner requested a "formal

166administrative hearing" on the Board's proposed denial of her

175application for licensure by endorsement. Her letter read as

184follows:

185Please consider this letter an official

191appeal of the Agency denial of my LPN license

200which was filed January 31, 2000. I am

208requesting a formal administrative hearing to

214challenge the agency denial of my

220application. The disputed issues of material

226fact include, but are not limited to, the

234fact that I meet all licensure requirements

241for licensure by endorsement and that the

248agency failed to render a decision on my

256application within the time required under

262Chapter 120 of the Florida Statutes. The

269agency also failed to comply with Florida

276Administrative Code 64B9-3.008 and 64B9-3.008

281section 4.

283Please forward this Petition to the Division

290of Administrative Hearings.

293Kindly forward all correspondence to the

299above address. Thank you in advance for your

307speedy response to this appeal.

312Pursuant to Petitioner's request, the Board, on August 4,

3212000, referred the matter to the Division of Administrative

330Hearings (Division) for the "assign[ment of] an administrative

338law judge for the purpose of hearing the disputed issues of fact

350arising from the Notice of Intent to Deny Petitioner's

359application for licensure."

362As noted above, the hearing requested by Petitioner was held

372on November 2, 2000. At the hearing, Petitioner testified on her

383own behalf, and Mary Kay Jacobsen, the Board's Nursing Education

393Director, testified on behalf of Respondent. No other testimony

402was presented. In addition to the testimony of Petitioner and

412Ms. Jacobsen, a total of three exhibits (Petitioner's Exhibits 1

422through 3) were offered and received into evidence.

430At the conclusion of the evidentiary portion of the hearing,

440the undersigned, on the record, advised the parties of their

450right to file proposed recommended orders and established a

459deadline (November 28, 2000) for the filing of such post-hearing

469submittals.

470On November 28, 2000, Petitioner filed an unopposed motion

479requesting an extension of this deadline. By Order issued

488November 30, 2000, the undersigned granted the request and

497established a new deadline (December 8, 2000).

504The Board and Petitioner filed their Proposed Recommended

512Orders on December 5, 2000, and December 8, 2000, respectively.

522These post-hearing submittals have been carefully considered by

530the undersigned.

532FINDINGS OF FACT

535Based upon the evidence adduced at hearing 1/ and the

545record as a whole, the following findings of fact are made:

5561. Petitioner is now, and has been continuously since

565June 27, 1980, registered as a practical nurse in Ontario,

575Canada. She holds registration number HJ-11850.

5812. She received her initial registration after taking and

590receiving a score of 563 on the June 1980 Canadian Nurses

601Association Practical Nurse/Nursing Assistant

605Registration/Licensure Examination (CNAPN Test).

6093. The CNAPN Test that Petitioner took was, at that time,

620one of the two Canadian national licensure examinations developed

629and administered by the Canadian Nursing Association Testing

637Service (CNATS). The other was an examination for

645professional/registered nurses (CNATS/RN Test).

6494. In 1980, the examination that applicants seeking to be

659licensed as a practical nurse in Florida had to take and pass was

672the State Board Test Pool Examination (SBTPE) for practical

681nurses. This examination (which is now known as the National

691Council Licensure Examination, or NCLEX, for practical nurses)

699was a national examination developed and administered by the

708National Council of State Boards of Nursing (National Council).

7175. In or about early 2000, Petitioner applied for licensure

727by endorsement as a practical nurse in Florida.

7356. Her application fees were received by the Board on

745February 1, 2000.

7487. Petitioner's application was not properly notarized, did

756not contain a completed statement of physical and mental health,

766and was not accompanied by the necessary written verification of

776her Ontario registration and examination scores.

7828. Petitioner was notified of the foregoing deficiencies,

790and she corrected them on or about February 28, 2000.

8009. Petitioner subsequently received a letter from the Board

809advising that the Board does not "endorse L.P.N's from Canada."

81910. Petitioner thereafter requested, and was granted, the

827opportunity to go before the Board to explain why she believed

838that she was entitled to licensure by endorsement.

84611. Petitioner appeared before the Board at its April 2,

8562000 meeting.

85812. At the meeting, Petitioner argued that she (and other

"868L.P.N's from Canada" like her) qualified for licensure under

877that subsection of the Board's licensure by endorsement rule

886(Subsection (4) of Rule 64B9-3.008, Florida Administrative Code)

894which provided, in pertinent part, as follows: "An applicant

903having successfully completed the Canadian Nurses Association

910Testing Service (CNATS) examination from 1980 up to August 9,

9201995, with a minimum score of 400 on the examination . . . can be

935licensed by endorsement."

93813. After Petitioner's presentation, the Board asked her

946whether she would be willing to waive her right to have a final

959decision on her application within the 90-day period prescribed

968by Section 120.60, Florida Statutes, so that the "history" of the

979rule provision cited by Petitioner could be researched.

987Petitioner indicated that she would be willing to do so, and the

999Board deferred its decision on Petitioner's application until its

1008June 2000 meeting.

101114. Research conducted by Board staff on the "history" of

1021Subsection (4) of Rule 64B9-3.008, Florida Administrative Code,

1029revealed that: during the 1980's, the Board was advised that the

1040National Council had performed a psychometric analysis of the

1049CNATS/RN Test and determined that a score of 400 or above on the

1062CNATS/RN Test was the substantial equivalent of a passing score

1072on the SBTPE/NCLEX for registered nurses; there is no indication

1082that the National Council has ever performed a similar analysis

1092of the CNAPN Test; such an analysis, however, was performed in

11031984 by a Board staff member, who determined that the CNAPN Test

1115was neither substantially equivalent to, nor more stringent than,

1124the SBTPE/NCLEX for practical nurses, and she so advised the

1134Board; and the Board, since 1984, has consistently declined to

1144grant licensure by endorsement based upon scores received on the

1154CNAPN Test.

115615. Petitioner appeared before the Board again at its

1165June 7, 2000 meeting and made an additional presentation to the

1176Board in support of her application for licensure. After hearing

1186from Petitioner, the Board advised her that it was denying her

1197application because she had not demonstrated that she had passed

1207a licensure examination that was equivalent to, or more stringent

1217than, the SBTPE/NCLEX for practical nurses.

122316. On June 14, 2000, the Board reduced its decision to

1234writing in a Notice of Intent to Deny, which read as follows:

1246Beverly Umilta Neblett has applied for

1252licensure as a practical nurse by

1258endorsement. The application came before the

1264Board of Nursing at a duly noticed public

1272meeting on June 7, 2000, in Jupiter, Florida.

1280Upon review of the application file, the

1287Board has determined that the applicant i[s]

1294not eligible for licensure on the following

1301grounds:

1302Applicant has not passed a licensing

1308examination that is at least equivalent to or

1316more stringent than that required in Florida

1323in 1980 under Section 464.009, Florida

1329Statutes, and Rule 64B9-3.008, Florida

1334Administrative Code.

1336It is therefore ORDERED that the application

1343for licensure of Beverly Umilta Neblett is

1350[h]ereby DENIED.

135217. It is this proposed agency action that Petitioner is

1362challenging in the instant case.

1367CONCLUSIONS OF LAW

137018. Persons engaged in practical nursing in Florida must,

1379pursuant to Chapter 464, Part I, Florida Statutes, have a license

1390to do so. "The sole legislative purpose in [imposing such a

1401requirement was] to ensure that every nurse practicing in this

1411state meets minimum requirements for safe practice." Section

1419464.002, Florida Statutes.

142219. A license to engage in practical nursing in Florida may

1433be obtained by taking and passing the state licensure examination

1443and providing proof of graduation from an approved nursing

1452program, as more fully described in Section 464.008, Florida

1461Statutes.

146220. Alternatively, a person may seek to obtain a license by

1473endorsement pursuant to Section 464.009, Florida Statutes, and

1481Rule 64B-3.008, Florida Administrative Code, which provide,

1488respectively, as follows:

1491464.009 Licensure by endorsement .--

1496(1) The department shall issue the

1502appropriate license by endorsement to

1507practice professional or practical nursing to

1513an applicant who, upon applying to the

1520department and remitting a fee set by the

1528board not to exceed $100, demonstrates to the

1536board that he or she:

1541(a) Holds a valid license to practice

1548professional or practical nursing in another

1554state of the United States, provided that,

1561when the applicant secured his or her

1568original license, the requirements for

1573licensure were substantially equivalent to or

1579more stringent than those existing in Florida

1586at that time; or

1590(b) Meets the qualifications for licensure

1596in s. 464.008 and has successfully completed

1603a state, regional, or national examination

1609which is substantially equivalent to or more

1616stringent than the examination given by the

1623department.

1624(2) Such examinations and requirements from

1630other states shall be presumed to be

1637substantially equivalent to or more stringent

1643than those in this state. Such presumption

1650shall not arise until January 1, 1980.

1657However, the board may, by rule, specify

1664states the examinations and requirements of

1670which shall not be presumed to be

1677substantially equivalent to those of this

1683state.

1684(3) The department shall not issue a license

1692by endorsement to any applicant who is under

1700investigation in another state for an act

1707which would constitute a violation of this

1714part until such time as the investigation is

1722complete, at which time the provisions of s.

1730464.018 shall apply.

173364B9-3.008 Licensure by Endorsement .

1738(1) A nurse who desires to be licensed to

1747practice professional or practical nursing in

1753Florida by endorsement must apply to the

1760Department on prescribed forms and pay the

1767required fee. Additionally, if the applicant

1773has been convicted of any offense, other than

1781a minor traffic violation, the applicant

1787shall furnish court records stating the

1793nature of the offense and the disposition of

1801the case so that a determination may be made

1810by the Board whether the conviction related

1817to the practice of nursing or the ability to

1826practice nursing. If the applicant has ever

1833had disciplinary action taken against a

1839license (including relinquishment or denial

1844of licensure) in another state, territory, or

1851country, he shall submit to the Board

1858documentation pertaining to such action and

1864its final disposition. This information is

1870required even though the action may have been

1878ultimately dismissed or the penalty already

1884served.

1885(2) To apply for endorsement pursuant to

1892Section 464.009(1)(a), F.S., an applicant

1897shall be required to show licensure in

1904another state of the United States or

1911province of Canada and to show what

1918requirements were met at the time the license

1926was issued. The Board will then determine in

1934the following manner whether such

1939requirements were equal to or more stringent

1946than those imposed by Florida at that time:

1954(a) If Florida law would have required an

1962applicant to take the licensure examination

1968had he applied in Florida at the time he was

1978licensed in the state of original licensure,

1985the following criteria will be applied to

1992determine whether the examination in the

1998original state was equivalent to or more

2005stringent than that given in Florida:

2011(b) The State Board Test Pool Examination

2018for Professional Nurses given between 1951

2024and 1981 is deemed the equivalent of the

2032Florida examination for registered nurses, if

2038the applicant passed the examination with a

2045score of 350 in each subject, or with a total

2055score of 1800.

2058(c) The State Board Test Pool Examination

2065for Practical Nurses given between 1952 and

20721981 is deemed the equivalent of the Florida

2080examination for practical nurses, if the

2086applicant passed the examination with a score

2093of 350.

2095(d) Licensing examinations given in other

2101states prior to 1951 for registered nurses

2108and 1952 for practical nurses are deemed the

2116equivalent of the examinations given in

2122Florida.

2123(e) Any other examination taken as a

2130condition for state licensure since 1951, for

2137registered nurses, or 1952, for practical

2143nurses, is deemed to be equivalent to or more

2152stringent than the examination given by

2158Florida at the time if it meets these

2166standards.

21671. The examination is developed using

2173accepted psychometric procedures.

21762. The content and passing score of the

2184examination are substantially equivalent to

2189that of the examination given in Florida at

2197the time.

21993. The security of the examination is

2206maintained.

22074. At least one of the reliability

2214estimations for the examination is 0.7 or

2221higher.

22225. The examination is revised after each

2229administration to insure currency of content.

2235(3) To apply for endorsement pursuant to

2242Section 464.009(1)(b), F.S., an applicant

2247shall meet all requirements for eligibility

2253to take the licensure examination as provided

2260in 64B9-3.002, and have successfully

2265completed the National Council Licensure

2270Examination for registered nurses with a

2276minimum score of 1600, or the National

2283Council Licensure Examination for practical

2288nurses with a minimum score of 350, or a

2297state, regional, or national examination

2302which meets the following minimum

2307requirements of equivalence with the National

2313Council Licensure Examination. However, as

2318of the February 1989 registered nurse

2324examination and the October 1988 practical

2330nurse examination, applicants must have

2335achieved passing status as reported by the

2342National Council of State Boards of Nursing.

2349(a) The examination is developed using

2355accepted psychometric procedures.

2358(b) The content and passing score of the

2366examination are substantially equivalent to

2371that of the National Council Licensure

2377Examination.

2378(c) The security of the examination is

2385maintained.

2386(d) At least one of the reliability

2393estimations for the examination is 0.7 or

2400higher.

2401(e) The examination is revised after each

2408administration to insure currency of content.

2414(4) An applicant having successfully

2419completed the Canadian Nurses Association

2424Testing Service (CNATS) examination from 1980

2430up to August 9, 1995, with a minimum score of

2440400 on the examination or, prior to 1980,

2448either a minimum score of 400 on each portion

2457of the five-part examination or a total score

2465of 2,050, or a minimum score of 400 on each

2476portion of the four-part examination with a

2483combined medical surgical nursing or a total

2490score of 1,640, can be licensed by

2498endorsement. An applicant licensed in Canada

2504based on the criterion referenced Canadian

2510Nurses Association Testing Service (CNATS)

2515examination administered effective August 9,

25201995 and with a PASS/FAIL score standard is

2528not eligible for licensure by endorsement in

2535Florida as this examination is not deemed

2542substantially equivalent or more stringent

2547than the examination given in Florida.

2553(5) A person licensed in the Republic of

2561Cuba prior to December 31, 1961, shall be

2569presumed to have successfully completed an

2575examination equivalent to the one given in

2582Florida, and shall be eligible for licensure

2589by endorsement when he or she has provided

2597proof of licensure in Cuba and has

2604successfully completed a program which is

2610given in an institution of higher learning,

2617is intended to assure current competency of

2624the applicant, and is approved by the Board.

2632An official document which verifies licensure

2638in Cuba shall be acceptable proof. If the

2646applicant has no official document verifying

2652licensure in Cuba, the applicant may provide

2659proof of actual licensure in the manner

2666provided in Rule 64B9-3.002(4)(b)1. and 2.

267221. Upon receiving an application for licensure, the Board

2681must act in accordance with the requirements of Section 120.60,

2691Florida Statutes, which provides, in pertinent part, as follows:

2700(1) Upon receipt of an application for a

2708license, an agency shall examine the

2714application and, within 30 days after such

2721receipt, notify the applicant of any apparent

2728errors or omissions and request any

2734additional information the agency is

2739permitted by law to require. An agency shall

2747not deny a license for failure to correct an

2756error or omission or to supply additional

2763information unless the agency timely notified

2769the applicant within this 30-day period. An

2776application shall be considered complete upon

2782receipt of all requested information and

2788correction of any error or omission for which

2796the applicant was timely notified or when the

2804time for such notification has expired.

2810Every application for a license shall be

2817approved or denied within 90 days after

2824receipt of a completed application unless a

2831shorter period of time for agency action is

2839provided by law. The 90-day time period

2846shall be tolled by the initiation of a

2854proceeding under ss. 120.569 and 120.57. An

2861application for a license must be approved or

2869denied within the 90-day or shorter time

2876period, within 15 days after the conclusion

2883of a public hearing held on the application,

2891or within 45 days after a recommended order

2899is submitted to the agency and the parties,

2907whichever is later. The agency must approve

2914any application for a license or for an

2922examination required for licensure if the

2928agency has not approved or denied the

2935application within the time periods

2940prescribed by this subsection. . . .

2947(3) Each applicant shall be given written

2954notice either personally or by mail that the

2962agency intends to grant or deny, or has

2970granted or denied, the application for

2976license. The notice must state with

2982particularity the grounds or basis for the

2989issuance or denial of the license, except

2996when issuance is a ministerial act. Unless

3003waived, a copy of the notice shall be

3011delivered or mailed to each party's attorney

3018of record and to each person who has

3026requested notice of agency action. Each

3032notice shall inform the recipient of the

3039basis for the agency decision, shall inform

3046the recipient of any administrative hearing

3052pursuant to ss. 120.569 and 120.57 or

3059judicial review pursuant to s.120.68 which

3065may be available, shall indicate the

3071procedure which must be followed, and shall

3078state the applicable time limits. The

3084issuing agency shall certify the date the

3091notice was mailed or delivered, and the

3098notice and the certification shall be filed

3105with the agency clerk. . . .

311222. An applicant for licensure as a practical nurse whose

3122application is preliminarily denied bears the ultimate burden (in

3131a Section 120.57(1) hearing on such preliminary action) of

3140demonstrating, by a preponderance of the evidence, entitlement to

3149such licensure. See Espinoza v. Department of Business and

3158Professional Regulation , 739 So. 2d 1250, 1251 (Fla. 3d DCA

31681999); Pershing Industries, Inc., v. Department of Banking and

3177Finance , 591 So. 2d 991, 994 (Fla. 1st DCA 1991); Cordes v.

3189Department of Environmental Regulation , 582 So. 2d 652, 654 (Fla.

31991st DCA 1991); Department of Transportation v. J.W.C., Co., 396

3209So. 2d 778, 787 (Fla. 1st DCA 1981); and Department of Health

3221and Rehabilitative Services v. Career Service Commission , 289 So.

32302d 412, 414-15 (Fla. 4th DCA 1974). The applicant, however, need

3241address only those entitlement issues raised in the Board's

3250notice of intent to deny the applicant's application. See

3259Woodholly Associates v. Department of Natural Resources , 451 So.

32682d 1002 (Fla. 1st DCA 1984).

327423. In the Notice of Intent to Deny it issued in the

3286instant case, the Board indicated that it intended to deny

3296Petitioner's application for licensure by endorsement because

3303Petitioner "ha[d] not passed a licensing examination that is at

3313least equivalent to or more stringent than that required in

3323Florida in 1980 under Section 464.009, Florida Statutes, and Rule

333364B9-3.008, Florida Administrative Code." By letter dated

3340July 26, 2000, Petitioner has challenged this proposed agency

3349action, arguing that that the Board "failed to render a decision

3360on [her] application within the time required under Chapter 120

3370of the Florida Statutes" and "also failed to comply with Florida

3381Administrative Code 64B9-3.008."

338424. Pursuant to Section 120.60(1), Florida Statutes, an

3392applicant for licensure has a right to have his or her

3403application approved or denied within 90 days of the date that it

3415is deemed "complete." An application is considered "complete,"

3423under the statute, "upon receipt [by the agency] of all requested

3434information and correction of any error or omission for which the

3445applicant was timely notified or when the time for such

3455notification [30 days from the date the application was initially

3465received by the agency] has expired." In the instant case,

3475Petitioner was timely notified that her application was not

3484properly notarized, did not contain a completed statement of

3493physical and mental health, and was not accompanied by the

3503necessary written verification of her Ontario registration and

3511examination scores. She corrected these deficiencies on or about

3520February 28, 2000. Petitioner's application became "complete,"

3527within the meaning of Section 120.60(1), Florida Statutes, when

3536she made these corrections, and the Board had 90 days from this

3548date within which to approve or deny the application. 2/ The

3559Board met within this 90-day period (on April 2, 2000) to

3570consider Petitioner's application. Petitioner appeared before

3576the Board, and, during her presentation, she knowingly and

3585voluntarily agreed to allow the Board to defer ruling on her

3596application until its June 7, 2000, meeting. Having done so, she

3607cannot now complain that, in denying her application at the June

36187, 2000 meeting, the Board acted on her application in an

3629untimely manner in derogation of the requirements of Section

3638120.60(1), Florida Statutes. See Torres v. K-Site 500

3646Associates , 632 So. 2d 110, 112 (Fla. 3d DCA 1994)("A party may

3659waive any rights to which he or she is legally entitled, by

3671actions or conduct warranting an inference that a known right has

3682been relinquished.").

368525. Petitioner's argument that the Board "failed to comply

3694with Florida Administrative Code 64B9-3.008" is also without

3702merit. It is Petitioner's position that, inasmuch as she

3711received a score of 563 on the June 1980 CNAPN Test, she is

3724entitled to licensure by endorsement pursuant to that portion of

3734Subsection (4) of Rule 64B9-3.008, Florida Administrative Code,

3742which reads as follows: "An applicant having successfully

3750completed the Canadian Nurses Association Testing Service (CNATS)

3758examination from 1980 up to August 9, 1995, with a minimum score

3770of 400 on the examination . . . can be licensed by endorsement."

378326. It is true that the CNAPN Test is a "CNATS

3794examination"; but Subsection (4) of Rule 64B9-3.008, Florida

3802Administrative Code, refers to " the . . . CNATS examination,"

3812without specifying to which of the two CNATS examinations, the

3822CNAPN Test or the CNATS/RN Test, the reference is. The Board has

3834consistently construed " the . . . CNATS examination," referred to

3844in Subsection (4) of Rule 64B9-3.008, Florida Administrative

3852Code, to mean, not the CNAPN Test, but the CNATS/RN Test. This

3864reasonable interpretation by the Board of its own rule (the

3874language of which is not clear and unambiguous 3/ ) must be

3886given deference, particularly in light of the "history"

3894(described above) of the rule provision and the absence of any

3905showing that Board has ever been presented with the results of

3916any psychometric study, similar to the psychometric study

3924performed by the National Council in the 1980's of the CNATS/RN

3935Test, demonstrating that the CNAPN Test is substantially

3943equivalent to, or more stringent than, the SBTPE/NCLEX for

3952practical nurses. See Citizens of the State of Florida v.

3962Wilson , 568 So. 2d 1267, 1271 (Fla. 1990)("An agency's

3972interpretation of its own rules is entitled to great

3981deference."); and Golfcrest Nursing Home v. Agency for Health

3991Care Administration , 662 So. 2d 1330, 1333 (Fla. 1st DCA 1995)

4002("An agency's interpretation of its own rules and regulations is

4013entitled to great weight, and shall not be overturned unless the

4024interpretation is clearly erroneous."). This is so even though,

4034as Petitioner complains in her Proposed Recommended Order, the

4043Board has not taken steps to amend Subsection (4) of Rule 64B9-

40553.008, Florida Administrative Code, to specify that "the . . .

4066CNATS examination" referred to therein is the CNATS/RN Test and

4076not the CNAPN Test. Even assuming arguendo that the Board's

"4086unadopted" interpretation of Subsection (4) of Rule 64B9-3.008,

4094Florida Administrative Code, itself constituted a "rule," as

4102defined in Section 120.52(15), Florida Statutes, 4/ (which

4110appears not to be the case 5/ ) the Board would nonetheless be

4123permitted to base its denial of Petitioner's application for

4132licensure by endorsement upon this interpretation inasmuch as the

4141evidentiary record in the instant case establishes that the

4150Board's interpretation meets the requirements of Section

4157120.57(1)(e), Florida Statutes, which provides as follows:

4164(e)1. Any agency action that determines the

4171substantial interests of a party and that is

4179based on an unadopted rule is subject to de

4188novo review by an administrative law judge.

41952. The agency action shall not be presumed

4203valid or invalid. The agency must

4209demonstrate that the unadopted rule:

4214a. Is within the powers, functions, and

4221duties delegated by the Legislature or, if

4228the agency is operating pursuant to authority

4235derived from the State Constitution, is

4241within that authority;

4244b. Does not enlarge, modify, or contravene

4251the specific provisions of law implemented;

42576/

4258c. Is not vague, establishes adequate

4264standards for agency decisions, or does not

4271vest unbridled discretion in the agency;

4277d. Is not arbitrary or capricious; 7/

4284e. Is not being applied to the substantially

4292affected party without due notice; 8/

4298f. Is supported by competent and substantial

4305evidence; and

4307g. Does not impose excessive regulatory

4313costs on the regulated person, county, or

4320city.

432127. Inasmuch as Petitioner has failed to demonstrate that

4330it is inconsistent with the plain meaning of either Subsection

4340(4) of Rule 64B9-3.008, Florida Administrative Code, or the

4349statute it implements, Section 464.009, Florida Statutes, for the

4358Board (as has been its established practice) to interpret the

4368former as not authorizing licensure by endorsement of applicants

4377based on their passing the CNAPN Test, and because Petitioner has

4388not shown that there is any other good reason for the Board to

4401reject such an interpretation, the Board, in the instant case,

4411should follow its established practice and hold that Petitioner's

4420having received a score of 563 on the June 1980 CNAPN Test does

4433not entitle her to licensure by endorsement. Cf. Coastal

4442Petroleum Company v. Florida Wildlife Federation, Inc. , 766 So.

44512d 226, 228 (Fla. 1st DCA 2000)(agency acted appropriately in

"4461'chang[ing] its mind' about how to interpret [Section 377.241,

4470Florida Statutes]" where its "previous practice was not

4478consistent with the proper interpretation of the . . . statute

4489and [it] adequately explained its determination.").

4496RECOMMENDATION

4497Based on the foregoing Findings of Fact and Conclusions of

4507Law, it is

4510RECOMMENDED that a final order be entered denying

4518Petitioner's application for licensure by endorsement as a

4526practical nurse.

4528DONE AND ENTERED this 18th day of December, 2000, in

4538Tallahassee, Leon County, Florida.

4542___________________________________

4543STUART M. LERNER

4546Administrative Law Judge

4549Division of Administrative Hearings

4553The DeSoto Building

45561230 Apalachee Parkway

4559Tallahassee, Florida 32399-3060

4562(850) 488-9675 SUNCOM 278-9675

4566Fax Filing (850) 921-6847

4570www.doah.state.fl.us

4571Filed with the Clerk of the

4577Division of Administrative Hearings

4581this 18th day of December, 2000.

4587ENDNOTES

45881/ A Transcript of the hearing (consisting of one volume) was

4599filed with the Division on December 6, 2000, and has been

4610reviewed by the undersigned.

46142/ An agency, pursuant to Section 120.60, Florida Statutes, must

4624merely approve or deny an application for licensure within 90

4634days from the date the application is considered "complete," not

4644reduce its decision to writing or provide the applicant written

4654notification of its action. See Sumner v. Department of

4663Professional Regulation, Board of Psychological Examiners , 555

4670So. 2d 919(Fla. 1st DCA 1990).

46763/ An agency may not "place a construction on a rule which is

4689clearly contradictory to the unambiguous language of the rule."

4698See Kearse v. Department of Health and Rehabilitative Services ,

4707474 So. 2d 819, 820 (Fla. 1st DCA 1985). Rather, it must give

4720effect to this "unambiguous language" unless and until the

4729language is changed through the rulemaking process. See Parrot

4738Heads, Inc. v. Department of Business and Professional

4746Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An

4757administrative agency is bound by its own rules . . . .");

4770Vantage Healthcare Corp. v. Agency for Health Care

4778Administration , 687 So. 2d 306, 308 (Fla. 1st DCA 1997)("The

4789agency is obligated to follow its own rules."); Cleveland Clinic

4800Florida Hospital v. Agency for Health Care Administration , 679

4809So. 2d 1237, 1242 (Fla. 1st DCA 1996)("Without question, an

4820agency must follow its own rules, . . . but if the rule, as it

4835plainly reads, should prove impractical in operation, the rule

4844can be amended pursuant to established rulemaking procedures.

4852However, [a] bsent such amendment, expedience cannot be permitted

4861to dictate its terms. . . . That is, while an administrative

4873agency is not necessarily bound by its initial construction of a

4884statute evidenced by the adoption of a rule, the agency may

4895implement its changed interpretation only by validly adopting

4903subsequent rule changes.")(internal quotation marks omitted);

4910Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An

4923agency must comply with its own rules."); Marrero v. Department

4934of Professional Regulation , 622 So. 2d 1109, 1111 (Fla. 1st DCA

49451993)("Since the Board is bound to comply with its own rules

4957until they have been repealed or otherwise invalidated, it cannot

4967take the position in this case that its rule does not embrace

4979'applicants' for licensure as well as license holders, contrary

4988to the unambiguous language of the rule."); and Decarion v.

4999Martinez , 537 So. 2d 1083, 1084 (Fla. 1st 1989)("Until amended or

5011abrogated, an agency must honor its rules."). The pertinent

5021language of Subsection (4) of Rule 64B9-3.008, Florida

5029Administrative Code, however, is not "unambiguous," nor is it

5038reasonably susceptible only to the interpretation urged by

5046Petitioner.

50474/ Section 120.52(15), Florida Statutes, provides as follows:

"5055Rule" means each agency statement of general

5062applicability that implements, interprets, or

5067prescribes law or policy or describes the

5074procedure or practice requirements of an

5080agency and includes any form which imposes

5087any requirement or solicits any information

5093not specifically required by statute or by an

5101existing rule. The term also includes the

5108amendment or repeal of a rule. The term does

5117not include:

5119(a) Internal management memoranda which do

5125not affect either the private interests of

5132any person or any plan or procedure important

5140to the public and which have no application

5148outside the agency issuing the memorandum.

5154(b) Legal memoranda or opinions issued to an

5162agency by the Attorney General or agency

5169legal opinions prior to their use in

5176connection with an agency action.

5181(c) The preparation or modification of:

51871. Agency budgets.

51902. Statements, memoranda, or instructions to

5196state agencies issued by the Comptroller as

5203chief fiscal officer of the state and

5210relating or pertaining to claims for payment

5217submitted by state agencies to the

5223Comptroller.

52243. Contractual provisions reached as a

5230result of collective bargaining.

52344. Memoranda issued by the Executive Office

5241of the Governor relating to information

5247resources management.

52495/ "An agency statement explaining how an existing rule of

5259general applicability will be applied in a particular set of

5269facts is not itself a rule. If that were true, the agency would

5282be forced to adopt a rule for every possible variation on a

5294theme, and private entities could continuously attack the

5302government for its failure to have a rule that precisely

5312addresses the facts at issue. Instead, these matters are left

5322for the adjudication process under section 120.57, Florida

5330Statutes." Environmental Trust v. Department of Environmental

5337Protection , 714 So. 2d 493, 498 (Fla. 1st DCA 1998).

53476/ Subsection (4) of Rule 64B9-3.008, Florida Administrative

5355Code, implements Section 464.009, Florida Statutes, which makes

5363no specific mention of the CNAPN Test. In fact, a reasonable

5374argument can be made that the term, "national examination," used

5384in Section 464.009, Florida Statutes, does not include any

5393examination taken outside the United States. Compare the

5401language of Section 464.009, Florida Statutes, with that of

5410Section 471.015(3), Florida Statutes, which authorizes the

5417licensure by endorsement of engineers and provides, in pertinent

5426part, as follows:

5429The board shall certify as qualified for a

5437license by endorsement an applicant

5442who: . . .

5446(a) [H]as passed a United States national,

5453regional, state, or territorial or foreign

5459national licensing examination that is

5464substantially equivalent to the examination

5469required by s. 471.013.

5473See Wanda Marine Corporation v. Department of Revenue ,

5481305 So. 2d 65, 69 (Fla. 1st DCA 1975)("It is our view

5494that the word 'state' as used in the exemption proviso

5504of Section 212.06(8), means one of the states of the

5514United States and not a foreign entity. This

5522construction is in keeping with the common usage of the

5532word 'state.' The absence of a different connotation

5540expressed or implied in the statute causes us to reach

5550this conclusion and to hold that the appellant's use of

5560the boat in foreign waters, for whatever period of time

5570prior to bringing it into Florida, did not bring it

5580within the ambit of the exemption provision relied upon

5589by appellant. Had the legislature intended for the

5597term 'state' to include foreign countries it could have

5606done so by adding the phrase 'or foreign country' after

5616the word 'state' in the exemption proviso, as it did do

5627in Section 212.06(2)(b) in defining the term

5634'dealer.'").

56367/ An "arbitrary" action is "one not supported by facts or

5647logic, or [is] despotic." A "capricious" action is "one which is

5658taken without thought or reason or [is] irrational[]." Agrico

5667Chemical Co. v. Department of Environmental Regulation , 365 So.

56762d 759, 763 (Fla. 1st DCA 1978); see also Board of Clinical

5688Laboratory Personnel, v. Florida Association of Blood Banks , 721

5697So. 2d 317, 318 (Fla. 1st DCA 1998)("An 'arbitrary' decision is

5709one not supported by facts or logic. A 'capricious' action is

5720one taken irrationally, without thought or reason.").

57288/ Petitioner was made aware of the Board's interpretation (and

5738its application to her situation) prior to the April 2, 2000

5749Board meeting, and had the opportunity at that meeting and at the

5761Board's June 7, 2000, meeting, as well as at the final hearing

5773held November 2, 2000, in the instant case, to challenge this

5784interpretation.

5785COPIES FURNISHED:

5787Alicia M. Phidd, Esquire

5791Post Office Box 260004

5795Pembroke Pines, Florida 33026

5799Lee Ann Gustafson, Esquire

5803Office of the Attorney General

5808Department of Legal Affairs

5812The Capitol, Plaza Level 01

5817Tallahassee, Florida 32399-1050

5820Ruth R. Stiehl, Ph.D., R.N., Executive Director

5827Board of Nursing

5830Department of Health

58334080 Woodcock Drive, Suite 202

5838Jacksonville, Florida 32207-2714

5841Theodore M. Henderson, Agency Clerk

5846Department of Health

58494052 Bald Cypress Way

5853Bin A02

5855Tallahassee, Florida 32399-1701

5858NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5864All parties have the right to submit written exceptions within 15

5875days from the date of this recommended order. Any exceptions to

5886this recommended order should be filed with the agency that will

5897issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/12/2001
Proceedings: Agency Final Order
PDF:
Date: 02/03/2001
Proceedings: Final Order filed.
PDF:
Date: 01/22/2001
Proceedings: Motion for Reconsideration and to Set Aside Final Order of January 18, 2001 (filed by Petitioner via facsimile).
PDF:
Date: 12/18/2000
Proceedings: Recommended Order
Date: 12/18/2000
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 12/18/2000
Proceedings: Recommended Order issued (hearing held November 2, 2000) CASE CLOSED.
PDF:
Date: 12/08/2000
Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
Date: 12/06/2000
Proceedings: Transcript filed.
PDF:
Date: 12/06/2000
Proceedings: Notice of Filing - transcript filed.
PDF:
Date: 12/05/2000
Proceedings: Respondent`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 11/30/2000
Proceedings: Order issued (Petitioner unopposed motion requesting an extension of the deadline for filing of proposed recommended orders is granted).
PDF:
Date: 11/28/2000
Proceedings: Motion to Enlarge Time to File Proposed Recommended Orders (filed by Petitioner via facsimile).
Date: 11/02/2000
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 11/01/2000
Proceedings: Fax Cover Sheet to Judge S. Lerner from A. Phidd In re: additional exhibit for 11/2/2000 hearing (filed via facsimile).
PDF:
Date: 10/26/2000
Proceedings: Amended Notice of Video Teleconference issued. (hearing scheduled for November 2, 2000; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL, amended as to Tallahassee Location).
Date: 10/02/2000
Proceedings: Amended Notice of Video Teleconference issued. (hearing scheduled for November 2, 2000; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL, amended as to scheduling by video teleconference and hearing location).
PDF:
Date: 09/18/2000
Proceedings: Amended Notice of Hearing by Video Teleconference (Amended as to Scheduling by Video Teleconference and Hearing Location only) filed.
PDF:
Date: 09/05/2000
Proceedings: Notice of Representation (A. Phidd) filed.
PDF:
Date: 08/31/2000
Proceedings: Notice of Hearing issued (hearing set for November 2, 2000; 9:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 08/30/2000
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 08/08/2000
Proceedings: Initial Order issued.
PDF:
Date: 08/04/2000
Proceedings: Notice of Intent to Deny (filed via facsimile).
PDF:
Date: 08/04/2000
Proceedings: Request for Formal Administrative Hearing (filed via facsimile).
PDF:
Date: 08/04/2000
Proceedings: Referral for Hearing (filed via facsimile).

Case Information

Judge:
STUART M. LERNER
Date Filed:
08/04/2000
Date Assignment:
11/01/2000
Last Docket Entry:
02/03/2001
Location:
Fort Lauderdale, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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Related Florida Statute(s) (12):

Related Florida Rule(s) (3):