97-003104 Brien Charles Mcglynn vs. Board Of Nursing Status: Closed Recommended Order on Friday, December 26, 1997.

Summary: No clear and convincing evidence that Petitioner intentionally failed to disclose a seventeen year-old conviction for Driving Under the Influence (DUI).

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 for mal 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. Petitio ner 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, Re spondent

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 Pe titioner 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:

(a) 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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.