12-003553
Rose Fenelon vs.
Board Of Nursing
Status: Closed
Recommended Order on Monday, March 25, 2013.
Recommended Order on Monday, March 25, 2013.
1Case No. 12-3553
4STATE OF FLORIDA
7DIVISION OF ADMINISTRATIVE HEARINGS
11ROSE FENELON, RECOMMENDED ORDER )
16)
17Petitioner, )
19vs. )
21)
22BOARD OF NURSING, )
26)
27Respondent. )
29)
30)
31On January 10, 2013, a final hearing was held in this case
43by video teleconference at sites in Orlando and Tallahassee,
52Florida, before Elizabeth W. McArthur, Administrative Law Judge,
60Division of Administrative Hearings (DOAH).
65APPEARANCES
66For Petitioner: Rose Fenelon, pro se
721145 Kempton Chase Parkway
76Orlando, Florida 32837-6328
79For Respondent: Lee Ann Gustafson, Esquire
85Department of Legal Affairs
89The Capitol, Plaza Level 01
94Tallahassee, Florida 32399-1050
97STATEMENT OF THE ISSUE
101Whether Petitioner's application for licensure as a
108practical nurse (PN) should be approved or denied.
116PRELIMINARY STATEMENT
118By Notice of Intent to Deny (Notice) issued on October 10,
1292012, the Board of Nursing (Respondent or Board) informed Rose
139Fenelon (Petitioner) of its intent to deny her application for
149licensure by examination as a PN. As reasons for denial, the
160Notice referred to the following: fraudulent documentation
167submitted with a prior application for licensure by endorsement
176as a registered nurse (RN), by which Petitioner obtained an RN
187license that Petitioner later voluntarily relinquished;
193inconsistent statements in a prior application for licensure as
202a PN and in Petitioner's testimony before the Board regarding
212that application; and inconsistencies between the prior
219applications and statements made in the current application for
228licensure as a PN.
232Petitioner requested an administrative hearing to contest
239the Notice. The Board referred the matter to DOAH to conduct the
251requested hearing.
253An Order of Pre-Hearing Instructions required the parties to
262exchange their proposed exhibits and witness lists before the
271final hearing. Respondent filed its witness list and exhibit
280list and provided Petitioner with its proposed exhibits.
288Petitioner did not file a witness list and did not provide
299Respondent with any proposed exhibits.
304At the final hearing, Petitioner testified on her own
313behalf. Petitioner did not ask to admit any documents in
323evidence. Respondent presented the testimony of William Spooner,
331the program operations administrator for the Board's licensure
339unit. Respondent's composite Exhibits 1 and 2 were admitted in
349evidence.
350A transcript of the final hearing was ordered. The parties
360agreed that proposed recommended orders would be due within 20
370days after the transcript was filed at DOAH. Due to a
381miscommunication with the court reporter, the one-volume
388Transcript was not filed until February 22, 2013. Respondent
397timely filed a proposed recommended order; Petitioner has not
406made any post-hearing filing. Respondent's proposed recommended
413order has been considered, as has the entire record, in the
424preparation of this Recommended Order.
429FINDINGS OF FACT
4321. At issue in this proceeding is the application for
442licensure by examination as a PN signed by Petitioner on
452August 6, 2012, and mailed to the Board for filing. This
463application will be referred to as the "August 2012 PN
473application."
4742. The purpose of an application for PN licensure by
484examination is to demonstrate that the applicant has the
493educational and background qualifications to be eligible to take
502the PN licensure examination. The Board uses the National
511Council Licensure Examination, commonly referred to as "NCLEX."
519The NCLEX is owned by the National Council of State Boards of
531Nursing, to which all state nursing boards, including Florida's,
540belong as members. There is an NCLEX for PN licensure (NCLEX-PN)
551and a separate NCLEX for RN licensure (NCLEX-RN).
5593. The August 2012 PN application stated that Petitioner
568obtained her nursing education from Lincoln Technical Institute
576in Fern Park, Florida, where Petitioner completed an LPN program
586from which she graduated on September 24, 2011.
5944. In the "examination history" section of the August 2012
604PN application, Petitioner stated that she took the NCLEX-RN in
614Florida in November 2002 and passed.
6205. However, according to Mr. Spooner's credible testimony,
628Petitioner could not have taken and passed the NCLEX-RN in
638Florida in November 2002, as represented. The Board has no
648record of Petitioner ever having been approved to take the
658NCLEX-RN in Florida, much less having taken and received a
668passing score.
6706. As Mr. Spooner explained, in order for someone to take
681either the NCLEX-RN or the NCLEX-PN in Florida, that person must
692first submit an application to the Board for either RN or PN
704licensure by examination, and the application must be approved by
714the Board. If an application is approved, the Board then would
725send an "authorization to test" to the approved applicant. The
735Board would also transmit the applicant's name to the exam
745vendor, Pearson VUE, on a list identifying the applicant as
755eligible to take either the NCLEX-RN or the NCLEX-PN. Following
765the examination, the results would be transmitted by the exam
775vendor directly to the Board.
7807. In a section of the August 2012 PN application called
"791applicant background," Petitioner was asked a series of "yes-no"
800questions, asking whether she had "ever applied for" any of the
811following: RN licensure by examination in Florida; PN licensure
820by examination in Florida; RN licensure by endorsement in
829Florida; or PN licensure by endorsement in Florida. Petitioner
838did not answer either yes or no to any of these questions about
851prior applications in Florida.
8558. The "applicant background" section also asked Petitioner
863whether she has ever been licensed in Florida as an RN or a PN.
877Petitioner indicated that she had been licensed in Florida as
887an RN. Petitioner was required to list all nursing licenses she
898has held; and for any licenses that were no longer active,
909Petitioner was instructed to "state why and when" the license
919became no longer active. Petitioner listed her Florida RN
928license and offered the following as to why and when that license
940became no longer active: "lack of accreditation of the school
950(07-2007)."
9519. Evidence at hearing established that in the August 2012
961PN application, Petitioner should have disclosed the following
969prior nursing applications filed in Florida: in May 2006,
978Petitioner applied for RN licensure by endorsement (May 2006 RN
988application); in October 2008, Petitioner applied for RN
996licensure by examination (October 2008 RN application); in
1004January 2009, Petitioner applied for RN licensure by examination
1013(January 2009 RN application); and in October 2011, Petitioner
1022applied for PN licensure by examination (October 2011 PN
1031application).
103210. The May 2006 RN application resulted in the issuance of
1043an RN license to Petitioner. This was the RN license that
1054Petitioner listed on the August 2012 PN application. However,
1063the RN license was not rendered inactive for the reason stated by
1075Petitioner ("lack of accreditation of the school").
108411. Instead, the May 2006 RN application contained false
1093information, misrepresenting that Petitioner graduated in 2002
1100from an ADN (associate degree in nursing) program at Laramie
1110County Community College in Wyoming; that Petitioner had taken
1119and passed the RN licensure exam in Wyoming in November 2002; and
1131that in December 2002, the Wyoming Board of Nursing issued an RN
1143license to Petitioner. Submitted with the May 2006 RN
1152application was a falsified license verification form completed
1160by someone identified as the director of Wyoming's Board of
1170Nursing, verifying that Petitioner held an active RN license in
1180Wyoming and providing the license number ostensibly corresponding
1188to Petitioner's Wyoming RN license.
119312. The May 2006 RN application contained accurate personal
1202information about Petitioner, including her social security
1209number, date of birth, and her mother's maiden name. Some of the
1221personal information was wrong, such as Petitioner's birth place.
1230Petitioner's Orlando, Florida, home address was a bit garbled--
1239the street number and name were correct, but "Parkway" was left
1250off of the street name and was, instead, put into the space for
1263the city (so that the city was identified as Parkway instead of
1275Orlando). However, the zip code was correct, so despite the
1285garbled address in the application form, the Board got the
1295address straightened out and was able to correspond with
1304Petitioner about the application during its processing.
131113. Petitioner described the background leading up to the
1320May 2006 RN application. Petitioner was born in Haiti. She said
1331that she was a nurse in Haiti before moving to Florida.
1342Petitioner offered no details regarding any formal education
1350received or regulatory approvals to practice nursing held in
1359Haiti. There was no evidence establishing when Petitioner moved
1368to Florida, except that it was sometime before 2002. Once in
1379Florida, she sought to take the steps needed to be allowed to
1391practice nursing in Florida. Petitioner testified that based on
1400her "accreditation" from her country, she was allowed to take an
"1411online program" of some kind offered by the International School
1421of Nursing, which she described as based in Wyoming, with
"1431school" branches in Hallandale, Florida, and Nigeria. According
1439to Petitioner, she successfully completed the online program in
14482002; she understood that the purpose of the program was to allow
1460her to "sit for the exam here in Florida."
146914. Petitioner testified that her online school took "them"
1478(presumably Petitioner and other students) to Miami, Florida, to
"1487the exam" in 2002. When asked what exam she took, Petitioner
1498testified as follows: "When I go in the computer it says NCLEX,
1510NCLEX exam." 1/ Petitioner said that someone at the online school
1521called her to tell her that she passed the exam, but she never
1534saw the results. Petitioner said that she was told by the online
1546school that she could not get a nursing license until she paid
1558the school the rest of the money she owed for the online program.
1571Petitioner testified that she paid off the debt between 2002 and
15822006, at which point the school prepared the May 2006 RN
1593application and filed it for Petitioner.
159915. Petitioner's testimony was not forthright about the
1607May 2006 RN application. Petitioner claimed that she had no
1617knowledge whatsoever about the contents of the May 2006 RN
1627application, because the application was handled entirely by the
1636online school. At first, Petitioner claimed that all she knew
1646was that the school submitted the application for her, and the
1657next thing she knew, she received her license. She claimed that
1668she did not question the license when it appeared, because she
1679thought she qualified for the license. However, Petitioner
1687ultimately admitted that she was involved in the application
1696process, because the Board corresponded with her at her home
1706address and Petitioner responded to the Board's requests. The
1715Board wrote to Petitioner to confirm receipt of her RN
"1725endorsement application," but noted that she had omitted the
1734filing fee; the filing fee was then paid by Petitioner. The
1745Board then wrote to Petitioner to confirm receipt of the filing
1756fee payment, but noted that Petitioner needed to get
1765fingerprinted and have the fingerprint cards submitted for a
1774background check; Petitioner followed those instructions.
178016. Petitioner admitted that she did not go to nursing
1790school at a community college in Wyoming, did not take the
1801NCLEX-RN in Wyoming, and never held an RN license in Wyoming.
181217. Petitioner denied signing the May 2006 RN application
1821and noted that the signature is not even her name. Indeed, with
1833the benefit of that testimony, if one stares at the signature
1844long enough, the cursive scrawl takes on the appearance of the
1855name of the street where Petitioner lives. However, the scrawled
1865signature is far from legible; the letters are not distinct. At
1876a quick glance, one could just as reasonably discern something
1886approximating Petitioner's first initial and last name, instead
1894of the name of Petitioner's street; those two alternatives are
1904about the same length and end in the same letters ("on"). For
1918someone expecting to see Petitioner's name and not studying the
1928signature with the benefit of Petitioner's testimony, it is not
1938so obvious that the signature is not Petitioner's name.
194718. Petitioner did not directly accuse someone from the
1956online school of taking it upon himself or herself to submit for
1968Petitioner a fraudulent application for RN licensure by
1976endorsement without Petitioner's knowledge or permission, but
1983that was the implication of Petitioner's testimony claiming that
1992she had no idea what was in the May 2006 RN application.
2004Petitioner's testimony is difficult to credit, especially since
2012Petitioner did not identify who would have done such a thing or
2024what that person's motive could possibly have been. Moreover,
2033Petitioner's claimed ignorance of the application is not borne
2042out by the evidence. At the very least, Petitioner knew that an
2054application for RN licensure by endorsement was filed in her
2064name, because she received the Board's letters acknowledging
2072receipt of her "endorsement application," and she actively
2080participated in the processing of that application by responding
2089to the Board's requests.
209319. An application for licensure by endorsement means that
2102the applicant has an active license in another state, which was
2113obtained after the applicant took and passed that state's
2122licensure examination, either the NCLEX or the State Board test
2132pool. Thus, Petitioner knew, or certainly should have known,
2141that she was not eligible for RN licensure by endorsement because
2152she did not hold an RN license in another state. See § 464.009,
2165Fla. Stat. (2006)(addressing the requirements for RN or PN
2174licensure by endorsement). As Petitioner acknowledged,
2180applicants for nursing licenses in Florida are required to know
2190the licensure laws and rules.
219520. Despite not qualifying under Florida law for RN
2204licensure by endorsement, Petitioner accepted the RN license
2212issued by the Board on the basis of the falsified May 2006 RN
2225application and practiced as an RN for several months.
223421. In early 2007, the Board received a "fraud list" from
2245the National Council of State Boards of Nursing, identifying
2254names of possible fraudulent applicants. As a result, the Board
2264investigated Petitioner's May 2006 RN application. Using the
2272Wyoming online licensure-look-up tool, the Board searched for
2280Petitioner and found no nursing license history, a fact later
2290confirmed to the Board in an affidavit from a Wyoming Board of
2302Nursing representative. Using the same tool, the Board searched
2311the records by the license number identified in the license
2321verification form filed with Petitioner's May 2006 RN
2329application. The results of that search showed that the license
2339number did not correspond to an active RN license issued to
2350Petitioner following successful examination in Wyoming. Instead,
2357the license number corresponded to an RN license by endorsement
2367that had been issued to a different person, not Petitioner, but
2378that had expired in 2004. The Board's investigation also
2387confirmed that the person identified as the director of Wyoming's
2397Board of Nursing, who completed Petitioner's license verification
2405form, was not the Wyoming Board of Nursing's director.
241422. On June 22, 2007, the Department of Health (Department)
2424issued an emergency suspension order (ESO), suspending
2431Petitioner's RN license. The ESO contained a detailed recitation
2440of the facts regarding the May 2006 RN application, including the
2451fact that it was an application for RN licensure by endorsement,
2462which required verification that Petitioner held an active RN
2471license in another state and that to address this requirement, a
2482license verification form attested to Petitioner's RN license in
2491Wyoming. The ESO set forth the results of the Board's
2501investigation, by which it determined that the May 2006 RN
2511application contained material misrepresentations and was
2517supported by a falsified license verification form. The ESO
2526concluded that because Petitioner's RN license was procured by
2535knowing misrepresentations, when the actual facts showed that
2543Petitioner was not qualified for the license issued to her, it
2554was necessary to immediately suspend Petitioner's license.
256123. Petitioner did not contest the ESO. Petitioner
2569testified that she did not fight the ESO, because she had no
2581money to hire a lawyer. However, Petitioner also admitted that
2591she did not have grounds to fight it, because she did not, in
2604fact, qualify for RN licensure by endorsement.
261124. The Department issued an administrative complaint
2618against Petitioner's RN license based on the same allegations as
2628in the ESO. In lieu of further proceedings on the administrative
2639complaint, Petitioner agreed to voluntarily relinquish her RN
2647license, which the Board accepted by Final Order rendered
2656December 24, 2007. As with the ESO, Petitioner attempted to
2666explain her choice not to contest this action as a financial
2677decision. However, Petitioner ultimately conceded that she could
2685not have successfully fought to retain her RN license that she
2696received by endorsement, because she was not qualified for
2705licensure by endorsement.
270825. Petitioner claimed to not understand until sometime
2716recently, when the Board sent her a copy of the May 2006 RN
2729application, that fraudulent information and documentation were
2736submitted to enable her to obtain an RN license. Petitioner
2746claimed to have been "shocked" when she saw the application.
2756Petitioner's testimony in this regard was not credible.
2764Petitioner may have failed to previously obtain a copy of the
2775application that she knew was submitted in her name. However, at
2786least by mid-2007, Petitioner was informed, with great
2794specificity set forth in the ESO and administrative complaint, of
2804each aspect of false information and falsified documentation that
2813the Board found in connection with her May 2006 RN application.
2824Petitioner knew, from the ESO and administrative complaint, that
2833her application for RN licensure by endorsement could only be
2843approved if there was evidence that she had an active RN license
2855in another state. Petitioner knew, from the ESO and
2864administrative complaint, that her application was submitted with
2872a falsified license verification form attesting to the RN license
2882she supposedly held in Wyoming, when Petitioner knew she never
2892had any such license.
289626. Although Petitioner denied completing and signing the
2904May 2006 RN application, she admitted that she completed, signed,
2914and filed the other applications enumerated in Finding of Fact 9,
2925above.
292627. The October 2008 RN application was an application for
2936licensure by examination by which Petitioner sought permission to
2945take the NCLEX-RN.
294828. To demonstrate that she qualified for the educational
2957requirements for RN licensure by examination, Petitioner reported
2965that she had graduated in 2002 from an ADN program at the
2977International Nursing School in Hallandale, Florida. This was
2985the online school previously described as the International
2993School of Nursing.
299629. The October 2008 RN application stated that Petitioner
3005took the RN licensure exam in Florida in November 2002 and
3016passed. As previously noted, Mr. Spooner credibly testified that
3025Petitioner could not have taken the NCLEX-RN in Florida without
3035first applying for RN licensure by examination, obtaining Board
3044approval, and receiving an authorization to test from the Board,
3054which she did not do before November 2002 (or at any other time).
306730. On October 31, 2008, the Board notified Petitioner that
3077it was unable to approve her application for examination, because
3087the school attended by Petitioner for the ADN program did not
3098offer a Board-approved program of nursing education.
310531. Petitioner's January 2009 RN application was another
3113attempt to obtain Board approval to sit for the NCLEX-RN. This
3124application identified a different nursing school attended for
3132Petitioner's nursing education. According to the application,
3139Petitioner completed the ADN program at Valencia Community
3147College, in Orlando, Florida, graduating on July 1, 2008.
3156However, contrary to the application's representation, Petitioner
3163did not "graduate" from an ADN program; instead, Petitioner took
3173an online continuing education course called "RN Refresher 1" and
3183received a certificate of participation on July 1, 2008.
319232. The January 2009 RN application also represented that
3201Petitioner had taken and passed the RN licensure exam in Florida
3212in May 2008. At hearing, Petitioner did not attempt to explain
3223this reference, nor was there any other evidence to suggest that
3234Petitioner took and passed the NCLEX-RN in Florida in May 2008
3245(or at any other time).
325033. Once again, the Board notified Petitioner that her
3259January 2009 RN application could not be approved, because
3268Petitioner failed to demonstrate that she met the educational
3277qualifications necessary for RN licensure by examination. The
3285Board noted that Petitioner's continuing education participation
3292certificate was not adequate to meet the educational requirements
3301for RN licensure.
330434. At hearing, Petitioner attempted to cast blame on staff
3314persons at the Board who fielded her telephone calls asking how
3325she could get relicensed following her relinquishment of the RN
3335license. Petitioner testified that unnamed persons told her
3343either that she needed to go back to school; or that she needed
3356to go to an accredited school; or that all she needed to do was
3370to take a refresher course. Petitioner's unsubstantiated
3377testimony did not help establish that Petitioner's August 2012 PN
3387application should be approved. In any event, the suggestion
3396that Petitioner was told a refresher course was sufficient to
3406meet educational requirements for RN licensure is rejected as
3415lacking credibility. Petitioner may have been told that she had
3425to graduate from a Board-approved ADN program to apply for RN
3436licensure, which would explain why Petitioner represented in her
3445January 2009 RN application that she graduated from an ADN
3455program. However, as Petitioner admitted, she was never told
3464that she should misrepresent the facts on her applications.
347335. After Petitioner's unsuccessful attempts to apply for
3481RN licensure, Petitioner changed course and enrolled in a
3490Board-approved PN program at Lincoln Technical Institute in Fern
3499Park, Florida. She completed the program in September 2011, and
3509then submitted the October 2011 PN application, seeking Board
3518approval to sit for the NCLEX-PN.
352436. In the October 2011 PN application, Petitioner answered
"3533no" to the question asking whether she had ever applied for RN
3545licensure by examination in Florida (despite two prior
3553applications), but Petitioner answered "yes" to the question
3561asking whether she ever applied for RN licensure by endorsement
3571in Florida, acknowledging the May 2006 RN application.
3579Petitioner identified the RN license she received in 2007, but in
3590response to the query, "[i]f no longer licensed, state why and
3601when," she falsely stated that the "license expired."
360937. In the examination history section of the October 2011
3619PN application, Petitioner stated that she took and passed the
3629NCLEX-RN exam in Wyoming, in February of either 2002 or 2006
3640(both years are written on top of each other; it appears that
36522006 was written first, and then was changed to 2002, although it
3664could be the other way around).
367038. The October 2011 PN application was considered by the
3680Board at a public meeting in February 2012. Petitioner appeared
3690and testified, although she said that she was not given enough
3701time to explain about the May 2006 RN application and the
3712relinquishment of her RN license.
371739. The Board issued a notice of intent to deny the October
37292011 PN application based on misrepresentations in the
3737application. 2/ The Board referred to the fraudulent May 2006 RN
3748application and relinquishment of Petitioner's RN license
3755(contrary to the application's representation that Petitioner's
3762RN license had expired). The Board also referred to the
3772application's statement that Petitioner took and passed the
3780NCLEX-RN in Wyoming in 2002, which was contrasted with
3789Petitioner's testimony before the Board, when she "testified both
3798that she did and did not take the NCLEX-RN in Wyoming."
380940. Petitioner did not request a DOAH administrative
3817hearing to dispute the facts in the Board's notice of intent to
3829deny the October 2011 PN application. Instead, Petitioner took
3838the option offered in the Board's notice for an informal hearing
3849before the Board "[i]f you do not dispute any material fact[.]"
3860That hearing was held at a public meeting of the Board on June 7,
38742012, but Petitioner did not appear.
388041. By Final Order rendered June 20, 2012, the Board denied
3891the October 2011 PN application. The Final Order summarized the
3901reasons previously recited in the notice of intent to deny,
3911including the fact that the May 2006 RN application was
3921fraudulent and resulted in the relinquishment of Petitioner's RN
3930license, and including Petitioner's testimony before the Board in
3939February 2012 that she did not sit for the NCLEX-RN in Wyoming as
3952represented in the October 2011 PN application. The Final Order
3962concluded that Petitioner "is in violation of Section
3970or obtaining a nursing license by bribery, misrepresentation or
3979deceit." As authorized by sections 464.018(2) and 456.072(2),
3987Florida Statutes (2011), the Board denied Petitioner's
3994application.
399542. The August 2012 PN application repeated the same
4004essential problems as the October 2011 PN application, which was
4014denied by Final Order. Petitioner again misrepresented the
4022reason why her Florida RN license was no longer active, although
4033this time, instead of saying that the RN license had expired,
4044Petitioner changed her response to "lack of accreditation of the
4054school." Petitioner again misrepresented her NCLEX examination
4061history, although this time, instead of saying that she took and
4072passed the RN licensure examination in Wyoming in February 2002
4082or 2006, Petitioner said that she took and passed the RN
4093licensure examination in Florida in November 2002.
410043. Petitioner was given the chance to explain the
4109inconsistencies apparent from a side-by-side review of the
4117applications she acknowledged having prepared and filed.
4124Petitioner offered no explanation. The implication of the
4132unexplained inconsistencies is that Petitioner intentionally gave
4139false answers out of fear that the Board would deny her
4150applications if the true answers were given and that Petitioner
4160kept changing her false answers out of hope that a different
4171(false) answer would lead the Board to approve the application.
4181CONCLUSIONS OF LAW
418444. The Division of Administrative Hearings has
4191jurisdiction over the parties and the subject matter of this
4201proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2012). 3/
421045. Petitioner is the applicant for PN licensure by
4219examination, seeking Board approval to sit for the NCLEX-PN. As
4229the applicant challenging the Board's notice of intent to deny
4239her application, Petitioner bears the ultimate burden of proving
4248that her application should be approved. Fla. Dep't of Transp.
4258v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).
427046. The standard of proof that Petitioner must meet is by a
4282preponderance of the evidence. § 120.57(1)(j). The
4289preponderance of the evidence standard requires proof by "the
4298greater weight of the evidence" or evidence that "more likely
4308than not" tends to prove a certain proposition. Gross v. Lyons ,
4319763 So. 2d 276, 280 n.1 (Fla. 2000).
432747. Respondent initially denied Petitioner's application
4333and (h), Florida Statutes. These statutes provide that
4341attempting to procure a license by knowing misrepresentations,
4349fraudulent misrepresentations, or deceit constitutes grounds to
4356deny the license.
435948. To the extent Respondent seeks to deny Petitioner's
4368application on these grounds, Respondent bears the burden of
4377presenting evidence of these violations of regulatory statutes
4385that implicate Petitioner's fitness for licensure. See Dep't of
4394Banking & Fin., Div. of Sec. and Inv. Prot. v. Osborne Stern and
4407Co. , 670 So. 2d 932, 934-935 (Fla. 1996).
441549. Respondent proved that Petitioner's August 2012 PN
4423application contained misrepresentations that were knowingly made
4430by Petitioner in an attempt to obtain approval of her licensure
4441application.
444250. In the August 2012 PN application, Petitioner knowingly
4451misrepresented the reason why her Florida RN license was no
4461longer active. Petitioner did not voluntarily relinquish her RN
4470license because her online school was not accredited; Petitioner
4479voluntarily relinquished her RN license because she was not
4488qualified for the license. The RN license was procured with a
4499fraudulent application for licensure by endorsement, supported by
4507a fabricated license verification form ostensibly completed by an
4516official from Wyoming attesting to Petitioner's RN license in
4525Wyoming obtained by examination in that state. Even if
4534Petitioner did not personally prepare the May 2006 RN application
4544and license verification form, Petitioner knew when she completed
4553the August 2012 PN application that her RN license was
4563fraudulently obtained and that she was not qualified for the RN
4574license she had accepted, because all of these facts were laid
4585out in detail in the 2007 ESO and administrative complaint.
459551. Petitioner's patterned history of changing the answers
4603given for her educational, examination, application, licensure,
4610and disciplinary history from application to application further
4618supports the conclusion that Petitioner's misrepresentations
4624cannot be explained away as innocent oversights or
4632misunderstandings. If, for example, Petitioner truly believed
4639that the reason her RN license was no longer active was because
4651of an accreditation problem with the online school, then
4660Petitioner would not have stated in another application that her
4670RN license was no longer active because it had expired.
468052. Although Petitioner may not have personally filled out
4689the May 2006 RN application, the evidence was sufficient to prove
4700that, more likely than not, Petitioner was complicit in the
4710submission of that application. Petitioner admittedly
4716participated in the processing of that application with the
4725Board, accepted the benefit (RN license) procured by the
4734fraudulent submission, and accepted the consequences detailed in
4742the ESO and administrative complaint by relinquishing the
4750fraudulently-procured license. Thereafter, Petitioner avoided
4755disclosing her licensure history, choosing instead to
4762misrepresent the reason why her license was inactivated. At
4771hearing, Petitioner offered no proof to substantiate her
4779implication that someone at the online school perpetrated this
4788fraud without her knowledge or involvement.
479453. Respondent proved that Petitioner attempted to procure
4802a license by knowing misrepresentations in the August 2012 PN
4812application. Petitioner failed to prove that her application
4820should be approved.
4823RECOMMENDATION
4824Based on the foregoing Findings of Fact and Conclusions of
4834Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a
4845final order denying Petitioner, Rose Fenelon's, application for
4853practical nurse licensure by examination.
4858DONE AND ENTERED this 25th day of March, 2013, in
4868Tallahassee, Leon County, Florida.
4872S
4873ELIZABETH W. MCARTHUR
4876Administrative Law Judge
4879Division of Administrative Hearings
4883The DeSoto Building
48861230 Apalachee Parkway
4889Tallahassee, Florida 32399-3060
4892(850) 488-9675
4894Fax Filing (850) 921-6847
4898www.doah.state.fl.us
4899Filed with the Clerk of the
4905Division of Administrative Hearings
4909this 25th day of March, 2013.
4915ENDNOTES
49161/ Petitioner's testimony that she believes that she took an
4926NCLEX exam in Florida in 2002, before ever applying to the Board
4938for licensure by examination, was neither credible nor
4946substantiated by documentation or corroborating witnesses (such
4953as the others she claimed were taken with her to Miami for the
4966test). As Mr. Spooner explained, it would not have been possible
4977for Petitioner to take either the NCLEX-RN or the NCLEX-PN before
4988applying to the Board for licensure by examination, receiving
4997Board approval of the application, and receiving an
"5005authorization to test" from the Board.
50112/ Petitioner was represented by counsel in connection with the
5021October 2011 PN application. The Board's notice of intent to
5031deny the October 2011 PN application was served on Petitioner in
5042care of her attorney.
50463/ All statutory references are to the 2012 version of the
5057Florida Statutes, unless otherwise indicated.
5062FURNISHED:
5063Joe Baker, Jr., Executive Director
5068Board of Nursing
5071Department of Health
50744052 Bald Cypress Way, Bin C02
5080Tallahassee, Florida 32399-3252
5083Dr. Ann-Lynn Denker, ARNP, Chair
5088Board of Nursing
5091Department of Health
50944052 Bald Cypress Way
5098Tallahassee, Florida 32399
5101Jennifer A. Tschetter, General Counsel
5106Department of Health
51094052 Bald Cypress Way, Bin A02
5115Tallahassee, Florida 32399-1701
5118Lee Ann Gustafson, Esquire
5122Department of Legal Affairs
5126The Capitol, Plaza Level 01
5131Tallahassee, Florida 32399-1050
5134Rose Fenelon
51361145 Kempton Chase Parkway
5140Orlando, Florida 32837-6328
5143NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5149All parties have the right to submit written exceptions within
515915 days from the date of this Recommended Order. Any exceptions
5170to this Recommended Order should be filed with the agency that
5181will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 03/25/2013
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 02/22/2013
- Proceedings: Transcript (not available for viewing) filed.
- Date: 01/10/2013
- Proceedings: CASE STATUS: Hearing Held.
Case Information
- Judge:
- ELIZABETH W. MCARTHUR
- Date Filed:
- 11/02/2012
- Date Assignment:
- 11/05/2012
- Last Docket Entry:
- 10/22/2013
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Rose Fenelon
Address of Record -
Lee Ann Gustafson, Esquire
Address of Record