12-003553 Rose Fenelon vs. Board Of Nursing Status: Closed Recommended Order on Monday, March 25, 2013.

Summary: Respondent proved that Petitioner attempted to procure a license by knowing misrepresentations. Recommend denial of practical nurse application for licensure by examination.

Case No. 12-3553

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSE FENELON, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

BOARD OF NURSING, )

)

Respondent. )

)

)

On January 10, 2013, a final hearing was held in this case

by video teleconference at sites in Orlando and Tallahassee,

Florida, before Elizabeth W. McArthur, Administrative Law Judge,

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Rose Fenelon, pro se

1145 Kempton Chase Parkway

Orlando, Florida 32837-6328

For Respondent: Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a

practical nurse (PN) should be approved or denied.

PRELIMINARY STATEMENT

By Notice of Intent to Deny (Notice) issued on October 10,

2012, the Board of Nursing (Respondent or Board) informed Rose

Fenelon (Petitioner) of its intent to deny her application for

licensure by examination as a PN. As reasons for denial, the

Notice referred to the following: fraudulent documentation

submitted with a prior application for licensure by endorsement

as a registered nurse (RN), by which Petitioner obtained an RN

license that Petitioner later voluntarily relinquished;

inconsistent statements in a prior application for licensure as

a PN and in Petitioner's testimony before the Board regarding

that application; and inconsistencies between the prior

applications and statements made in the current application for

licensure as a PN.

Petitioner requested an administrative hearing to contest

the Notice. The Board referred the matter to DOAH to conduct the

requested hearing.

An Order of Pre-Hearing Instructions required the parties to

exchange their proposed exhibits and witness lists before the

final hearing. Respondent filed its witness list and exhibit

list and provided Petitioner with its proposed exhibits.

Petitioner did not file a witness list and did not provide

Respondent with any proposed exhibits.

At the final hearing, Petitioner testified on her own

behalf. Petitioner did not ask to admit any documents in

evidence. Respondent presented the testimony of William Spooner,

the program operations administrator for the Board's licensure

unit. Respondent's composite Exhibits 1 and 2 were admitted in

evidence.

A transcript of the final hearing was ordered. The parties

agreed that proposed recommended orders would be due within 20

days after the transcript was filed at DOAH. Due to a

miscommunication with the court reporter, the one-volume

Transcript was not filed until February 22, 2013. Respondent

timely filed a proposed recommended order; Petitioner has not

made any post-hearing filing. Respondent's proposed recommended

order has been considered, as has the entire record, in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At issue in this proceeding is the application for

licensure by examination as a PN signed by Petitioner on

August 6, 2012, and mailed to the Board for filing. This

application will be referred to as the "August 2012 PN

application."

2. The purpose of an application for PN licensure by

examination is to demonstrate that the applicant has the

educational and background qualifications to be eligible to take

the PN licensure examination. The Board uses the National

Council Licensure Examination, commonly referred to as "NCLEX."

The NCLEX is owned by the National Council of State Boards of

Nursing, to which all state nursing boards, including Florida's,

belong as members. There is an NCLEX for PN licensure (NCLEX-PN)

and a separate NCLEX for RN licensure (NCLEX-RN).

3. The August 2012 PN application stated that Petitioner

obtained her nursing education from Lincoln Technical Institute

in Fern Park, Florida, where Petitioner completed an LPN program

from which she graduated on September 24, 2011.

4. In the "examination history" section of the August 2012

PN application, Petitioner stated that she took the NCLEX-RN in

Florida in November 2002 and passed.

5. However, according to Mr. Spooner's credible testimony,

Petitioner could not have taken and passed the NCLEX-RN in

Florida in November 2002, as represented. The Board has no

record of Petitioner ever having been approved to take the

NCLEX-RN in Florida, much less having taken and received a

passing score.

6. As Mr. Spooner explained, in order for someone to take

either the NCLEX-RN or the NCLEX-PN in Florida, that person must

first submit an application to the Board for either RN or PN

licensure by examination, and the application must be approved by

the Board. If an application is approved, the Board then would

send an "authorization to test" to the approved applicant. The

Board would also transmit the applicant's name to the exam

vendor, Pearson VUE, on a list identifying the applicant as

eligible to take either the NCLEX-RN or the NCLEX-PN. Following

the examination, the results would be transmitted by the exam

vendor directly to the Board.

7. In a section of the August 2012 PN application called

"applicant background," Petitioner was asked a series of "yes-no"

questions, asking whether she had "ever applied for" any of the

following: RN licensure by examination in Florida; PN licensure

by examination in Florida; RN licensure by endorsement in

Florida; or PN licensure by endorsement in Florida. Petitioner

did not answer either yes or no to any of these questions about

prior applications in Florida.

8. The "applicant background" section also asked Petitioner

whether she has ever been licensed in Florida as an RN or a PN.

Petitioner indicated that she had been licensed in Florida as

an RN. Petitioner was required to list all nursing licenses she

has held; and for any licenses that were no longer active,

Petitioner was instructed to "state why and when" the license

became no longer active. Petitioner listed her Florida RN

license and offered the following as to why and when that license

became no longer active: "lack of accreditation of the school

(07-2007)."

9. Evidence at hearing established that in the August 2012

PN application, Petitioner should have disclosed the following

prior nursing applications filed in Florida: in May 2006,

Petitioner applied for RN licensure by endorsement (May 2006 RN

application); in October 2008, Petitioner applied for RN

licensure by examination (October 2008 RN application); in

January 2009, Petitioner applied for RN licensure by examination

(January 2009 RN application); and in October 2011, Petitioner

applied for PN licensure by examination (October 2011 PN

application).

10. The May 2006 RN application resulted in the issuance of

an RN license to Petitioner. This was the RN license that

Petitioner listed on the August 2012 PN application. However,

the RN license was not rendered inactive for the reason stated by

Petitioner ("lack of accreditation of the school").

11. Instead, the May 2006 RN application contained false

information, misrepresenting that Petitioner graduated in 2002

from an ADN (associate degree in nursing) program at Laramie

County Community College in Wyoming; that Petitioner had taken

and passed the RN licensure exam in Wyoming in November 2002; and

that in December 2002, the Wyoming Board of Nursing issued an RN

license to Petitioner. Submitted with the May 2006 RN

application was a falsified license verification form completed

by someone identified as the director of Wyoming's Board of

Nursing, verifying that Petitioner held an active RN license in

Wyoming and providing the license number ostensibly corresponding

to Petitioner's Wyoming RN license.

12. The May 2006 RN application contained accurate personal

information about Petitioner, including her social security

number, date of birth, and her mother's maiden name. Some of the

personal information was wrong, such as Petitioner's birth place.

Petitioner's Orlando, Florida, home address was a bit garbled--

the street number and name were correct, but "Parkway" was left

off of the street name and was, instead, put into the space for

the city (so that the city was identified as Parkway instead of

Orlando). However, the zip code was correct, so despite the

garbled address in the application form, the Board got the

address straightened out and was able to correspond with

Petitioner about the application during its processing.

13. Petitioner described the background leading up to the

May 2006 RN application. Petitioner was born in Haiti. She said

that she was a nurse in Haiti before moving to Florida.

Petitioner offered no details regarding any formal education

received or regulatory approvals to practice nursing held in

Haiti. There was no evidence establishing when Petitioner moved

to Florida, except that it was sometime before 2002. Once in

Florida, she sought to take the steps needed to be allowed to

practice nursing in Florida. Petitioner testified that based on

her "accreditation" from her country, she was allowed to take an

"online program" of some kind offered by the International School

of Nursing, which she described as based in Wyoming, with

"school" branches in Hallandale, Florida, and Nigeria. According

to Petitioner, she successfully completed the online program in

2002; she understood that the purpose of the program was to allow

her to "sit for the exam here in Florida."

14. Petitioner testified that her online school took "them"

(presumably Petitioner and other students) to Miami, Florida, to

"the exam" in 2002. When asked what exam she took, Petitioner

testified as follows: "When I go in the computer it says NCLEX,

NCLEX exam." 1/ Petitioner said that someone at the online school

called her to tell her that she passed the exam, but she never

saw the results. Petitioner said that she was told by the online

school that she could not get a nursing license until she paid

the school the rest of the money she owed for the online program.

Petitioner testified that she paid off the debt between 2002 and

2006, at which point the school prepared the May 2006 RN

application and filed it for Petitioner.

15. Petitioner's testimony was not forthright about the

May 2006 RN application. Petitioner claimed that she had no

knowledge whatsoever about the contents of the May 2006 RN

application, because the application was handled entirely by the

online school. At first, Petitioner claimed that all she knew

was that the school submitted the application for her, and the

next thing she knew, she received her license. She claimed that

she did not question the license when it appeared, because she

thought she qualified for the license. However, Petitioner

ultimately admitted that she was involved in the application

process, because the Board corresponded with her at her home

address and Petitioner responded to the Board's requests. The

Board wrote to Petitioner to confirm receipt of her RN

"endorsement application," but noted that she had omitted the

filing fee; the filing fee was then paid by Petitioner. The

Board then wrote to Petitioner to confirm receipt of the filing

fee payment, but noted that Petitioner needed to get

fingerprinted and have the fingerprint cards submitted for a

background check; Petitioner followed those instructions.

16. Petitioner admitted that she did not go to nursing

school at a community college in Wyoming, did not take the

NCLEX-RN in Wyoming, and never held an RN license in Wyoming.

17. Petitioner denied signing the May 2006 RN application

and noted that the signature is not even her name. Indeed, with

the benefit of that testimony, if one stares at the signature

long enough, the cursive scrawl takes on the appearance of the

name of the street where Petitioner lives. However, the scrawled

signature is far from legible; the letters are not distinct. At

a quick glance, one could just as reasonably discern something

approximating Petitioner's first initial and last name, instead

of the name of Petitioner's street; those two alternatives are

about the same length and end in the same letters ("on"). For

someone expecting to see Petitioner's name and not studying the

signature with the benefit of Petitioner's testimony, it is not

so obvious that the signature is not Petitioner's name.

18. Petitioner did not directly accuse someone from the

online school of taking it upon himself or herself to submit for

Petitioner a fraudulent application for RN licensure by

endorsement without Petitioner's knowledge or permission, but

that was the implication of Petitioner's testimony claiming that

she had no idea what was in the May 2006 RN application.

Petitioner's testimony is difficult to credit, especially since

Petitioner did not identify who would have done such a thing or

what that person's motive could possibly have been. Moreover,

Petitioner's claimed ignorance of the application is not borne

out by the evidence. At the very least, Petitioner knew that an

application for RN licensure by endorsement was filed in her

name, because she received the Board's letters acknowledging

receipt of her "endorsement application," and she actively

participated in the processing of that application by responding

to the Board's requests.

19. An application for licensure by endorsement means that

the applicant has an active license in another state, which was

obtained after the applicant took and passed that state's

licensure examination, either the NCLEX or the State Board test

pool. Thus, Petitioner knew, or certainly should have known,

that she was not eligible for RN licensure by endorsement because

she did not hold an RN license in another state. See § 464.009,

Fla. Stat. (2006)(addressing the requirements for RN or PN

licensure by endorsement). As Petitioner acknowledged,

applicants for nursing licenses in Florida are required to know

the licensure laws and rules.

20. Despite not qualifying under Florida law for RN

licensure by endorsement, Petitioner accepted the RN license

issued by the Board on the basis of the falsified May 2006 RN

application and practiced as an RN for several months.

21. In early 2007, the Board received a "fraud list" from

the National Council of State Boards of Nursing, identifying

names of possible fraudulent applicants. As a result, the Board

investigated Petitioner's May 2006 RN application. Using the

Wyoming online licensure-look-up tool, the Board searched for

Petitioner and found no nursing license history, a fact later

confirmed to the Board in an affidavit from a Wyoming Board of

Nursing representative. Using the same tool, the Board searched

the records by the license number identified in the license

verification form filed with Petitioner's May 2006 RN

application. The results of that search showed that the license

number did not correspond to an active RN license issued to

Petitioner following successful examination in Wyoming. Instead,

the license number corresponded to an RN license by endorsement

that had been issued to a different person, not Petitioner, but

that had expired in 2004. The Board's investigation also

confirmed that the person identified as the director of Wyoming's

Board of Nursing, who completed Petitioner's license verification

form, was not the Wyoming Board of Nursing's director.

22. On June 22, 2007, the Department of Health (Department)

issued an emergency suspension order (ESO), suspending

Petitioner's RN license. The ESO contained a detailed recitation

of the facts regarding the May 2006 RN application, including the

fact that it was an application for RN licensure by endorsement,

which required verification that Petitioner held an active RN

license in another state and that to address this requirement, a

license verification form attested to Petitioner's RN license in

Wyoming. The ESO set forth the results of the Board's

investigation, by which it determined that the May 2006 RN

application contained material misrepresentations and was

supported by a falsified license verification form. The ESO

concluded that because Petitioner's RN license was procured by

knowing misrepresentations, when the actual facts showed that

Petitioner was not qualified for the license issued to her, it

was necessary to immediately suspend Petitioner's license.

23. Petitioner did not contest the ESO. Petitioner

testified that she did not fight the ESO, because she had no

money to hire a lawyer. However, Petitioner also admitted that

she did not have grounds to fight it, because she did not, in

fact, qualify for RN licensure by endorsement.

24. The Department issued an administrative complaint

against Petitioner's RN license based on the same allegations as

in the ESO. In lieu of further proceedings on the administrative

complaint, Petitioner agreed to voluntarily relinquish her RN

license, which the Board accepted by Final Order rendered

December 24, 2007. As with the ESO, Petitioner attempted to

explain her choice not to contest this action as a financial

decision. However, Petitioner ultimately conceded that she could

not have successfully fought to retain her RN license that she

received by endorsement, because she was not qualified for

licensure by endorsement.

25. Petitioner claimed to not understand until sometime

recently, when the Board sent her a copy of the May 2006 RN

application, that fraudulent information and documentation were

submitted to enable her to obtain an RN license. Petitioner

claimed to have been "shocked" when she saw the application.

Petitioner's testimony in this regard was not credible.

Petitioner may have failed to previously obtain a copy of the

application that she knew was submitted in her name. However, at

least by mid-2007, Petitioner was informed, with great

specificity set forth in the ESO and administrative complaint, of

each aspect of false information and falsified documentation that

the Board found in connection with her May 2006 RN application.

Petitioner knew, from the ESO and administrative complaint, that

her application for RN licensure by endorsement could only be

approved if there was evidence that she had an active RN license

in another state. Petitioner knew, from the ESO and

administrative complaint, that her application was submitted with

a falsified license verification form attesting to the RN license

she supposedly held in Wyoming, when Petitioner knew she never

had any such license.

26. Although Petitioner denied completing and signing the

May 2006 RN application, she admitted that she completed, signed,

and filed the other applications enumerated in Finding of Fact 9,

above.

27. The October 2008 RN application was an application for

licensure by examination by which Petitioner sought permission to

take the NCLEX-RN.

28. To demonstrate that she qualified for the educational

requirements for RN licensure by examination, Petitioner reported

that she had graduated in 2002 from an ADN program at the

International Nursing School in Hallandale, Florida. This was

the online school previously described as the International

School of Nursing.

29. The October 2008 RN application stated that Petitioner

took the RN licensure exam in Florida in November 2002 and

passed. As previously noted, Mr. Spooner credibly testified that

Petitioner could not have taken the NCLEX-RN in Florida without

first applying for RN licensure by examination, obtaining Board

approval, and receiving an authorization to test from the Board,

which she did not do before November 2002 (or at any other time).

30. On October 31, 2008, the Board notified Petitioner that

it was unable to approve her application for examination, because

the school attended by Petitioner for the ADN program did not

offer a Board-approved program of nursing education.

31. Petitioner's January 2009 RN application was another

attempt to obtain Board approval to sit for the NCLEX-RN. This

application identified a different nursing school attended for

Petitioner's nursing education. According to the application,

Petitioner completed the ADN program at Valencia Community

College, in Orlando, Florida, graduating on July 1, 2008.

However, contrary to the application's representation, Petitioner

did not "graduate" from an ADN program; instead, Petitioner took

an online continuing education course called "RN Refresher 1" and

received a certificate of participation on July 1, 2008.

32. The January 2009 RN application also represented that

Petitioner had taken and passed the RN licensure exam in Florida

in May 2008. At hearing, Petitioner did not attempt to explain

this reference, nor was there any other evidence to suggest that

Petitioner took and passed the NCLEX-RN in Florida in May 2008

(or at any other time).

33. Once again, the Board notified Petitioner that her

January 2009 RN application could not be approved, because

Petitioner failed to demonstrate that she met the educational

qualifications necessary for RN licensure by examination. The

Board noted that Petitioner's continuing education participation

certificate was not adequate to meet the educational requirements

for RN licensure.

34. At hearing, Petitioner attempted to cast blame on staff

persons at the Board who fielded her telephone calls asking how

she could get relicensed following her relinquishment of the RN

license. Petitioner testified that unnamed persons told her

either that she needed to go back to school; or that she needed

to go to an accredited school; or that all she needed to do was

to take a refresher course. Petitioner's unsubstantiated

testimony did not help establish that Petitioner's August 2012 PN

application should be approved. In any event, the suggestion

that Petitioner was told a refresher course was sufficient to

meet educational requirements for RN licensure is rejected as

lacking credibility. Petitioner may have been told that she had

to graduate from a Board-approved ADN program to apply for RN

licensure, which would explain why Petitioner represented in her

January 2009 RN application that she graduated from an ADN

program. However, as Petitioner admitted, she was never told

that she should misrepresent the facts on her applications.

35. After Petitioner's unsuccessful attempts to apply for

RN licensure, Petitioner changed course and enrolled in a

Board-approved PN program at Lincoln Technical Institute in Fern

Park, Florida. She completed the program in September 2011, and

then submitted the October 2011 PN application, seeking Board

approval to sit for the NCLEX-PN.

36. In the October 2011 PN application, Petitioner answered

"no" to the question asking whether she had ever applied for RN

licensure by examination in Florida (despite two prior

applications), but Petitioner answered "yes" to the question

asking whether she ever applied for RN licensure by endorsement

in Florida, acknowledging the May 2006 RN application.

Petitioner identified the RN license she received in 2007, but in

response to the query, "[i]f no longer licensed, state why and

when," she falsely stated that the "license expired."

37. In the examination history section of the October 2011

PN application, Petitioner stated that she took and passed the

NCLEX-RN exam in Wyoming, in February of either 2002 or 2006

(both years are written on top of each other; it appears that

2006 was written first, and then was changed to 2002, although it

could be the other way around).

38. The October 2011 PN application was considered by the

Board at a public meeting in February 2012. Petitioner appeared

and testified, although she said that she was not given enough

time to explain about the May 2006 RN application and the

relinquishment of her RN license.

39. The Board issued a notice of intent to deny the October

2011 PN application based on misrepresentations in the

application. 2/ The Board referred to the fraudulent May 2006 RN

application and relinquishment of Petitioner's RN license

(contrary to the application's representation that Petitioner's

RN license had expired). The Board also referred to the

application's statement that Petitioner took and passed the

NCLEX-RN in Wyoming in 2002, which was contrasted with

Petitioner's testimony before the Board, when she "testified both

that she did and did not take the NCLEX-RN in Wyoming."

40. Petitioner did not request a DOAH administrative

hearing to dispute the facts in the Board's notice of intent to

deny the October 2011 PN application. Instead, Petitioner took

the option offered in the Board's notice for an informal hearing

before the Board "[i]f you do not dispute any material fact[.]"

That hearing was held at a public meeting of the Board on June 7,

2012, but Petitioner did not appear.

41. By Final Order rendered June 20, 2012, the Board denied

the October 2011 PN application. The Final Order summarized the

reasons previously recited in the notice of intent to deny,

including the fact that the May 2006 RN application was

fraudulent and resulted in the relinquishment of Petitioner's RN

license, and including Petitioner's testimony before the Board in

February 2012 that she did not sit for the NCLEX-RN in Wyoming as

represented in the October 2011 PN application. The Final Order

concluded that Petitioner "is in violation of Section

or obtaining a nursing license by bribery, misrepresentation or

deceit." As authorized by sections 464.018(2) and 456.072(2),

Florida Statutes (2011), the Board denied Petitioner's

application.

42. The August 2012 PN application repeated the same

essential problems as the October 2011 PN application, which was

denied by Final Order. Petitioner again misrepresented the

reason why her Florida RN license was no longer active, although

this time, instead of saying that the RN license had expired,

Petitioner changed her response to "lack of accreditation of the

school." Petitioner again misrepresented her NCLEX examination

history, although this time, instead of saying that she took and

passed the RN licensure examination in Wyoming in February 2002

or 2006, Petitioner said that she took and passed the RN

licensure examination in Florida in November 2002.

43. Petitioner was given the chance to explain the

inconsistencies apparent from a side-by-side review of the

applications she acknowledged having prepared and filed.

Petitioner offered no explanation. The implication of the

unexplained inconsistencies is that Petitioner intentionally gave

false answers out of fear that the Board would deny her

applications if the true answers were given and that Petitioner

kept changing her false answers out of hope that a different

(false) answer would lead the Board to approve the application.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2012). 3/

45. Petitioner is the applicant for PN licensure by

examination, seeking Board approval to sit for the NCLEX-PN. As

the applicant challenging the Board's notice of intent to deny

her application, Petitioner bears the ultimate burden of proving

that her application should be approved. Fla. Dep't of Transp.

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

46. The standard of proof that Petitioner must meet is by a

preponderance of the evidence. § 120.57(1)(j). The

preponderance of the evidence standard requires proof by "the

greater weight of the evidence" or evidence that "more likely

than not" tends to prove a certain proposition. Gross v. Lyons ,

763 So. 2d 276, 280 n.1 (Fla. 2000).

47. Respondent initially denied Petitioner's application

and (h), Florida Statutes. These statutes provide that

attempting to procure a license by knowing misrepresentations,

fraudulent misrepresentations, or deceit constitutes grounds to

deny the license.

48. To the extent Respondent seeks to deny Petitioner's

application on these grounds, Respondent bears the burden of

presenting evidence of these violations of regulatory statutes

that implicate Petitioner's fitness for licensure. See Dep't of

Banking & Fin., Div. of Sec. and Inv. Prot. v. Osborne Stern and

Co. , 670 So. 2d 932, 934-935 (Fla. 1996).

49. Respondent proved that Petitioner's August 2012 PN

application contained misrepresentations that were knowingly made

by Petitioner in an attempt to obtain approval of her licensure

application.

50. In the August 2012 PN application, Petitioner knowingly

misrepresented the reason why her Florida RN license was no

longer active. Petitioner did not voluntarily relinquish her RN

license because her online school was not accredited; Petitioner

voluntarily relinquished her RN license because she was not

qualified for the license. The RN license was procured with a

fraudulent application for licensure by endorsement, supported by

a fabricated license verification form ostensibly completed by an

official from Wyoming attesting to Petitioner's RN license in

Wyoming obtained by examination in that state. Even if

Petitioner did not personally prepare the May 2006 RN application

and license verification form, Petitioner knew when she completed

the August 2012 PN application that her RN license was

fraudulently obtained and that she was not qualified for the RN

license she had accepted, because all of these facts were laid

out in detail in the 2007 ESO and administrative complaint.

51. Petitioner's patterned history of changing the answers

given for her educational, examination, application, licensure,

and disciplinary history from application to application further

supports the conclusion that Petitioner's misrepresentations

cannot be explained away as innocent oversights or

misunderstandings. If, for example, Petitioner truly believed

that the reason her RN license was no longer active was because

of an accreditation problem with the online school, then

Petitioner would not have stated in another application that her

RN license was no longer active because it had expired.

52. Although Petitioner may not have personally filled out

the May 2006 RN application, the evidence was sufficient to prove

that, more likely than not, Petitioner was complicit in the

submission of that application. Petitioner admittedly

participated in the processing of that application with the

Board, accepted the benefit (RN license) procured by the

fraudulent submission, and accepted the consequences detailed in

the ESO and administrative complaint by relinquishing the

fraudulently-procured license. Thereafter, Petitioner avoided

disclosing her licensure history, choosing instead to

misrepresent the reason why her license was inactivated. At

hearing, Petitioner offered no proof to substantiate her

implication that someone at the online school perpetrated this

fraud without her knowledge or involvement.

53. Respondent proved that Petitioner attempted to procure

a license by knowing misrepresentations in the August 2012 PN

application. Petitioner failed to prove that her application

should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a

final order denying Petitioner, Rose Fenelon's, application for

practical nurse licensure by examination.

DONE AND ENTERED this 25th day of March, 2013, in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March, 2013.

ENDNOTES

1/ Petitioner's testimony that she believes that she took an

NCLEX exam in Florida in 2002, before ever applying to the Board

for licensure by examination, was neither credible nor

substantiated by documentation or corroborating witnesses (such

as the others she claimed were taken with her to Miami for the

test). As Mr. Spooner explained, it would not have been possible

for Petitioner to take either the NCLEX-RN or the NCLEX-PN before

applying to the Board for licensure by examination, receiving

Board approval of the application, and receiving an

"authorization to test" from the Board.

2/ Petitioner was represented by counsel in connection with the

October 2011 PN application. The Board's notice of intent to

deny the October 2011 PN application was served on Petitioner in

care of her attorney.

3/ All statutory references are to the 2012 version of the

Florida Statutes, unless otherwise indicated.

FURNISHED:

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399-3252

Dr. Ann-Lynn Denker, ARNP, Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Rose Fenelon

1145 Kempton Chase Parkway

Orlando, Florida 32837-6328

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.