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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEVERLY UMILTA NEBLETT, )

)

Petitioner, )

)

vs. ) Case No. 00-3198

)

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

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

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

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

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Alicia M. Phidd, Esquire

Post Office Box 260004

Pembroke Pines, Florida 33026

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

T allahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to licensure by endorsement

pursuant to Section 464.009, Florida Statutes, as implemented by

Rule 64B9-3.008.

PRELIMINARY STATEMENT

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

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

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

application for licensure by endorsement. Her letter read as

follows:

Please consider this letter an official

appeal of the Agency denial of my LPN license

which was filed January 31, 2000. I am

requesting a formal administrative hearing to

challenge the agency denial of my

application. The disputed issues of material

fact include, but are not limited to, the

fact that I meet all licensure requirements

for licensure by endorsement and that the

agency failed to render a decision on my

application within the time required under

Chapter 120 of the Florida Statutes. The

agency also failed to comply with Florida

Administrative Code 64B9-3.008 and 64B9-3.008

section 4.

Please forward this Petition to the Division

of Administrative Hearings.

Kindly forward all correspondence to the

above address. Thank you in advance for your

speedy response to this appeal.

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

2000, referred the matter to the Division of Administrative

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

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

arising from the Notice of Intent to Deny Petitioner's

application for licensure."

As noted above, the hearing requested by Petitioner was held

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

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

Director, testified on behalf of Respondent. No other testimony

was presented. In addition to the testimony of Petitioner and

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

through 3) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

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

right to file proposed recommended orders and established a

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

submittals.

On November 28, 2000, Petitioner filed an unopposed motion

requesting an extension of this deadline. By Order issued

November 30, 2000, the undersigned granted the request and

established a new deadline (December 8, 2000).

The Board and Petitioner filed their Proposed Recommended

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

These post-hearing submittals have been carefully considered by

the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing 1/ and the

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

1. Petitioner is now, and has been continuously since

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

Canada. She holds registration number HJ-11850.

2. She received her initial registration after taking and

receiving a score of 563 on the June 1980 Canadian Nurses

Association Practical Nurse/Nursing Assistant

Registration/Licensure Examination (CNAPN Test).

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

one of the two Canadian national licensure examinations developed

and administered by the Canadian Nursing Association Testing

Service (CNATS). The other was an examination for

professional/registered nurses (CNATS/RN Test).

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

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

the State Board Test Pool Examination (SBTPE) for practical

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

Council Licensure Examination, or NCLEX, for practical nurses)

was a national examination developed and administered by the

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

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

by endorsement as a practical nurse in Florida.

6. Her application fees were received by the Board on

February 1, 2000.

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

not contain a completed statement of physical and mental health,

and was not accompanied by the necessary written verification of

her Ontario registration and examination scores.

8. Petitioner was notified of the foregoing deficiencies,

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

9. Petitioner subsequently received a letter from the Board

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

10. Petitioner thereafter requested, and was granted, the

opportunity to go before the Board to explain why she believed

that she was entitled to licensure by endorsement.

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

2000 meeting.

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

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

that subsection of the Board's licensure by endorsement rule

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

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

having successfully completed the Canadian Nurses Association

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

1995, with a minimum score of 400 on the examination . . . can be

licensed by endorsement."

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

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

decision on her application within the 90-day period prescribed

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

rule provision cited by Petitioner could be researched.

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

Board deferred its decision on Petitioner's application until its

June 2000 meeting.

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

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

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

National Council had performed a psychometric analysis of the

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

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

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

that the National Council has ever performed a similar analysis

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

1984 by a Board staff member, who determined that the CNAPN Test

was neither substantially equivalent to, nor more stringent than,

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

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

grant licensure by endorsement based upon scores received on the

CNAPN Test.

15. Petitioner appeared before the Board again at its

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

Board in support of her application for licensure. After hearing

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

application because she had not demonstrated that she had passed

a licensure examination that was equivalent to, or more stringent

than, the SBTPE/NCLEX for practical nurses.

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

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

Beverly Umilta Neblett has applied for

licensure as a practical nurse by

endorsement. The application came before the

Board of Nursing at a duly noticed public

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

Upon review of the application file, the

Board has determined that the applicant i[s]

not eligible for licensure on the following

grounds:

Applicant has not passed a licensing

examination that is at least equivalent to or

more stringent than that required in Florida

in 1980 under Section 464.009, Florida

Statutes, and Rule 64B9-3.008, Florida

Administrative Code.

It is therefore ORDERED that the application

for licensure of Beverly Umilta Neblett is

[h]ereby DENIED.

17. It is this proposed agency action that Petitioner is

challenging in the instant case.

CONCLUSIONS OF LAW

18. Persons engaged in practical nursing in Florida must,

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

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

requirement was] to ensure that every nurse practicing in this

state meets minimum requirements for safe practice." Section

464.002, Florida Statutes.

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

be obtained by taking and passing the state licensure examination

and providing proof of graduation from an approved nursing

program, as more fully described in Section 464.008, Florida

Statutes.

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

endorsement pursuant to Section 464.009, Florida Statutes, and

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

respectively, as follows:

464.009 Licensure by endorsement .--

(1) The department shall issue the

appropriate license by endorsement to

practice professional or practical nursing to

an applicant who, upon applying to the

department and remitting a fee set by the

board not to exceed $100, demonstrates to the

board that he or she:

(a) Holds a valid license to practice

professional or practical nursing in another

state of the United States, provided that,

when the applicant secured his or her

original license, the requirements for

licensure were substantially equivalent to or

more stringent than those existing in Florida

at that time; or

(b) Meets the qualifications for licensure

in s. 464.008 and has successfully completed

a state, regional, or national examination

which is substantially equivalent to or more

stringent than the examination given by the

department.

(2) Such examinations and requirements from

other states shall be presumed to be

substantially equivalent to or more stringent

than those in this state. Such presumption

shall not arise until January 1, 1980.

However, the board may, by rule, specify

states the examinations and requirements of

which shall not be presumed to be

substantially equivalent to those of this

state.

(3) The department shall not issue a license

by endorsement to any applicant who is under

investigation in another state for an act

which would constitute a violation of this

part until such time as the investigation is

complete, at which time the provisions of s.

464.018 shall apply.

64B9-3.008 Licensure by Endorsement .

(1) A nurse who desires to be licensed to

practice professional or practical nursing in

Florida by endorsement must apply to the

Department on prescribed forms and pay the

required fee. Additionally, if the applicant

has been convicted of any offense, other than

a minor traffic violation, the applicant

shall furnish court records stating the

nature of the offense and the disposition of

the case so that a determination may be made

by the Board whether the conviction related

to the practice of nursing or the ability to

practice nursing. If the applicant has ever

had disciplinary action taken against a

license (including relinquishment or denial

of licensure) in another state, territory, or

country, he shall submit to the Board

documentation pertaining to such action and

its final disposition. This information is

required even though the action may have been

ultimately dismissed or the penalty already

served.

(2) To apply for endorsement pursuant to

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

shall be required to show licensure in

another state of the United States or

province of Canada and to show what

requirements were met at the time the license

was issued. The Board will then determine in

the following manner whether such

requirements were equal to or more stringent

than those imposed by Florida at that time:

(a) If Florida law would have required an

applicant to take the licensure examination

had he applied in Florida at the time he was

licensed in the state of original licensure,

the following criteria will be applied to

determine whether the examination in the

original state was equivalent to or more

stringent than that given in Florida:

(b) The State Board Test Pool Examination

for Professional Nurses given between 1951

and 1981 is deemed the equivalent of the

Florida examination for registered nurses, if

the applicant passed the examination with a

score of 350 in each subject, or with a total

score of 1800.

(c) The State Board Test Pool Examination

for Practical Nurses given between 1952 and

1981 is deemed the equivalent of the Florida

examination for practical nurses, if the

applicant passed the examination with a score

of 350.

(d) Licensing examinations given in other

states prior to 1951 for registered nurses

and 1952 for practical nurses are deemed the

equivalent of the examinations given in

Florida.

(e) Any other examination taken as a

condition for state licensure since 1951, for

registered nurses, or 1952, for practical

nurses, is deemed to be equivalent to or more

stringent than the examination given by

Florida at the time if it meets these

standards.

1. The examination is developed using

accepted psychometric procedures.

2. The content and passing score of the

examination are substantially equivalent to

that of the examination given in Florida at

the time.

3. The security of the examination is

maintained.

4. At least one of the reliability

estimations for the examination is 0.7 or

higher.

5. The examination is revised after each

administration to insure currency of content.

(3) To apply for endorsement pursuant to

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

shall meet all requirements for eligibility

to take the licensure examination as provided

in 64B9-3.002, and have successfully

completed the National Council Licensure

Examination for registered nurses with a

minimum score of 1600, or the National

Council Licensure Examination for practical

nurses with a minimum score of 350, or a

state, regional, or national examination

which meets the following minimum

requirements of equivalence with the National

Council Licensure Examination. However, as

of the February 1989 registered nurse

examination and the October 1988 practical

nurse examination, applicants must have

achieved passing status as reported by the

National Council of State Boards of Nursing.

(a) The examination is developed using

accepted psychometric procedures.

(b) The content and passing score of the

examination are substantially equivalent to

that of the National Council Licensure

Examination.

(c) The security of the examination is

maintained.

(d) At least one of the reliability

estimations for the examination is 0.7 or

higher.

(e) The examination is revised after each

administration to insure currency of content.

(4) An applicant having successfully

completed the Canadian Nurses Association

Testing Service (CNATS) examination from 1980

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

400 on the examination or, prior to 1980,

either a minimum score of 400 on each portion

of the five-part examination or a total score

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

portion of the four-part examination with a

combined medical surgical nursing or a total

score of 1,640, can be licensed by

endorsement. An applicant licensed in Canada

based on the criterion referenced Canadian

Nurses Association Testing Service (CNATS)

examination administered effective August 9,

1995 and with a PASS/FAIL score standard is

not eligible for licensure by endorsement in

Florida as this examination is not deemed

substantially equivalent or more stringent

than the examination given in Florida.

(5) A person licensed in the Republic of

Cuba prior to December 31, 1961, shall be

presumed to have successfully completed an

examination equivalent to the one given in

Florida, and shall be eligible for licensure

by endorsement when he or she has provided

proof of licensure in Cuba and has

successfully completed a program which is

given in an institution of higher learning,

is intended to assure current competency of

the applicant, and is approved by the Board.

An official document which verifies licensure

in Cuba shall be acceptable proof. If the

applicant has no official document verifying

licensure in Cuba, the applicant may provide

proof of actual licensure in the manner

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

21. Upon receiving an application for licensure, the Board

must act in accordance with the requirements of Section 120.60,

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

(1) Upon receipt of an application for a

license, an agency shall examine the

application and, within 30 days after such

receipt, notify the applicant of any apparent

errors or omissions and request any

additional information the agency is

permitted by law to require. An agency shall

not deny a license for failure to correct an

error or omission or to supply additional

information unless the agency timely notified

the applicant within this 30-day period. An

application shall be considered complete upon

receipt of all requested information and

correction of any error or omission for which

the applicant was timely notified or when the

time for such notification has expired.

Every application for a license shall be

approved or denied within 90 days after

receipt of a completed application unless a

shorter period of time for agency action is

provided by law. The 90-day time period

shall be tolled by the initiation of a

proceeding under ss. 120.569 and 120.57. An

application for a license must be approved or

denied within the 90-day or shorter time

period, within 15 days after the conclusion

of a public hearing held on the application,

or within 45 days after a recommended order

is submitted to the agency and the parties,

whichever is later. The agency must approve

any application for a license or for an

examination required for licensure if the

agency has not approved or denied the

application within the time periods

prescribed by this subsection. . . .

(3) Each applicant shall be given written

notice either personally or by mail that the

agency intends to grant or deny, or has

granted or denied, the application for

license. The notice must state with

particularity the grounds or basis for the

issuance or denial of the license, except

when issuance is a ministerial act. Unless

waived, a copy of the notice shall be

delivered or mailed to each party's attorney

of record and to each person who has

requested notice of agency action. Each

notice shall inform the recipient of the

basis for the agency decision, shall inform

the recipient of any administrative hearing

pursuant to ss. 120.569 and 120.57 or

judicial review pursuant to s.120.68 which

may be available, shall indicate the

procedure which must be followed, and shall

state the applicable time limits. The

issuing agency shall certify the date the

notice was mailed or delivered, and the

notice and the certification shall be filed

with the agency clerk. . . .

22. An applicant for licensure as a practical nurse whose

application is preliminarily denied bears the ultimate burden (in

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

demonstrating, by a preponderance of the evidence, entitlement to

such licensure. See Espinoza v. Department of Business and

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

1999); Pershing Industries, Inc., v. Department of Banking and

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

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

1st DCA 1991); Department of Transportation v. J.W.C., Co., 396

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

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

2d 412, 414-15 (Fla. 4th DCA 1974). The applicant, however, need

address only those entitlement issues raised in the Board's

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

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

2d 1002 (Fla. 1st DCA 1984).

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

instant case, the Board indicated that it intended to deny

Petitioner's application for licensure by endorsement because

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

least equivalent to or more stringent than that required in

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

64B9-3.008, Florida Administrative Code." By letter dated

July 26, 2000, Petitioner has challenged this proposed agency

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

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

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

Administrative Code 64B9-3.008."

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

applicant for licensure has a right to have his or her

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

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

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

information and correction of any error or omission for which the

applicant was timely notified or when the time for such

notification [30 days from the date the application was initially

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

Petitioner was timely notified that her application was not

properly notarized, did not contain a completed statement of

physical and mental health, and was not accompanied by the

necessary written verification of her Ontario registration and

examination scores. She corrected these deficiencies on or about

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

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

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

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

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

consider Petitioner's application. Petitioner appeared before

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

voluntarily agreed to allow the Board to defer ruling on her

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

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

7, 2000 meeting, the Board acted on her application in an

untimely manner in derogation of the requirements of Section

120.60(1), Florida Statutes. See Torres v. K-Site 500

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

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

actions or conduct warranting an inference that a known right has

been relinquished.").

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

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

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

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

entitled to licensure by endorsement pursuant to that portion of

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

which reads as follows: "An applicant having successfully

completed the Canadian Nurses Association Testing Service (CNATS)

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

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

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

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

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

without specifying to which of the two CNATS examinations, the

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

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

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

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

reasonable interpretation by the Board of its own rule (the

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

given deference, particularly in light of the "history"

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

showing that Board has ever been presented with the results of

any psychometric study, similar to the psychometric study

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

Test, demonstrating that the CNAPN Test is substantially

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

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

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

interpretation of its own rules is entitled to great

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

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

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

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

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

as Petitioner complains in her Proposed Recommended Order, the

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

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

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

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

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

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

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

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

permitted to base its denial of Petitioner's application for

licensure by endorsement upon this interpretation inasmuch as the

evidentiary record in the instant case establishes that the

Board's interpretation meets the requirements of Section

120.57(1)(e), Florida Statutes, which provides as follows:

(e)1. Any agency action that determines the

substantial interests of a party and that is

based on an unadopted rule is subject to de

novo review by an administrative law judge.

2. The agency action shall not be presumed

valid or invalid. The agency must

demonstrate that the unadopted rule:

a. Is within the powers, functions, and

duties delegated by the Legislature or, if

the agency is operating pursuant to authority

derived from the State Constitution, is

within that authority;

b. Does not enlarge, modify, or contravene

the specific provisions of law implemented;

6/

c. Is not vague, establishes adequate

standards for agency decisions, or does not

vest unbridled discretion in the agency;

d. Is not arbitrary or capricious; 7/

e. Is not being applied to the substantially

affected party without due notice; 8/

f. Is supported by competent and substantial

evidence; and

g. Does not impose excessive regulatory

costs on the regulated person, county, or

city.

27. Inasmuch as Petitioner has failed to demonstrate that

it is inconsistent with the plain meaning of either Subsection

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

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

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

former as not authorizing licensure by endorsement of applicants

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

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

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

should follow its established practice and hold that Petitioner's

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

not entitle her to licensure by endorsement. Cf. Coastal

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

2d 226, 228 (Fla. 1st DCA 2000)(agency acted appropriately in

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

Florida Statutes]" where its "previous practice was not

consistent with the proper interpretation of the . . . statute

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

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying

Petitioner's application for licensure by endorsement as a

practical nurse.

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

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of December, 2000.

ENDNOTES

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

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

reviewed by the undersigned.

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

merely approve or deny an application for licensure within 90

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

reduce its decision to writing or provide the applicant written

notification of its action. See Sumner v. Department of

Professional Regulation, Board of Psychological Examiners , 555

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

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

clearly contradictory to the unambiguous language of the rule."

See Kearse v. Department of Health and Rehabilitative Services ,

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

effect to this "unambiguous language" unless and until the

language is changed through the rulemaking process. See Parrot

Heads, Inc. v. Department of Business and Professional

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

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

Vantage Healthcare Corp. v. Agency for Health Care

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

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

Florida Hospital v. Agency for Health Care Administration , 679

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

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

plainly reads, should prove impractical in operation, the rule

can be amended pursuant to established rulemaking procedures.

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

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

agency is not necessarily bound by its initial construction of a

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

implement its changed interpretation only by validly adopting

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

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

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

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

1993)("Since the Board is bound to comply with its own rules

until they have been repealed or otherwise invalidated, it cannot

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

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

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

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

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

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

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

reasonably susceptible only to the interpretation urged by

Petitioner.

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

"Rule" means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by an

existing rule. The term also includes the

amendment or repeal of a rule. The term does

not include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure important

to the public and which have no application

outside the agency issuing the memorandum.

(b) Legal memoranda or opinions issued to an

agency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions to

state agencies issued by the Comptroller as

chief fiscal officer of the state and

relating or pertaining to claims for payment

submitted by state agencies to the

Comptroller.

3. Contractual provisions reached as a

result of collective bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

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

general applicability will be applied in a particular set of

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

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

theme, and private entities could continuously attack the

government for its failure to have a rule that precisely

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

for the adjudication process under section 120.57, Florida

Statutes." Environmental Trust v. Department of Environmental

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

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

Code, implements Section 464.009, Florida Statutes, which makes

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

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

in Section 464.009, Florida Statutes, does not include any

examination taken outside the United States. Compare the

language of Section 464.009, Florida Statutes, with that of

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

licensure by endorsement of engineers and provides, in pertinent

part, as follows:

The board shall certify as qualified for a

license by endorsement an applicant

who: . . .

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

regional, state, or territorial or foreign

national licensing examination that is

substantially equivalent to the examination

required by s. 471.013.

See Wanda Marine Corporation v. Department of Revenue ,

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

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

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

United States and not a foreign entity. This

construction is in keeping with the common usage of the

word 'state.' The absence of a different connotation

expressed or implied in the statute causes us to reach

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

the boat in foreign waters, for whatever period of time

prior to bringing it into Florida, did not bring it

within the ambit of the exemption provision relied upon

by appellant. Had the legislature intended for the

term 'state' to include foreign countries it could have

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

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

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

'dealer.'").

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

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

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

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

2d 759, 763 (Fla. 1st DCA 1978); see also Board of Clinical

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

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

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

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

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

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

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

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

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

interpretation.

COPIES FURNISHED:

Alicia M. Phidd, Esquire

Post Office Box 260004

Pembroke Pines, Florida 33026

Lee Ann Gustafson, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

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

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

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.