14-002096 Yolette Tema vs. Board Of Nursing Status: Closed Recommended Order on Wednesday, September 10, 2014.

Summary: Petitioner's application for licensure as a nurse in another state had been denied, which she failed to disclose in her application for a Florida nursing license, giving Respondent grounds to deny the pending application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOLETTE TEMA ,

Petitioner,

vs. Case No. 14 - 2096

BOARD OF NURSING ,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

July 11 and August 13, 2014 , at sites in Tallahassee and Miami,

Florida.

APPEARANCES

For Petitioner: Yolette Tema , pro se

115 Northeast 133rd Street

Miami , Florida 331 61

For Respondent: Lee Ann Gustafson , Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSU ES

The issue s in this case are whether , before applying for

licensure as a registered nurse in Florida , Petitioner had

suffered the denial of an application for licensure as a

practical nurse in the state of Virginia , and, if so, whether

Petitioner 's fail ure to disclose that fact in her Florida

application was a knowing misrepresentation; finally, if either

or both of the forgoing questions are answered in the

affirmative, whether Respondent has grounds to deny Petitioner's

pending application for a nursing licen se .

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated February 11, 2014,

Respondent Board of Nursing notified Petitioner Yolette Tema

that it intended to deny her application for licensure as a

registered nurse . Respondent's decision was based on Ms. Tema's

disciplinary history, which included a denial of licensure in

the state of Virginia; and on Ms. Tema's failure to disclose

that previous denial in her Florida application despite an

unambiguous request for such information . Ms. Tema timely

requested a formal hearing, and on May 9, 2014 , Respondent

referred the matter to the Division of Administrative Hearings,

where an A dministrative L aw J udge was assigned to conduct a

formal hearing.

The hearing began on July 11 , 2014 , as scheduled, but at

Ms. Tema's request was continued until August 13, 2014, on which

date the hearing was completed with both parties present.

Ms. Tema was the only witness. Respondent's Exhibits 1 and 2

were received in evidence without objection.

The final hea ring transcript was filed on August 25, 2014 .

Proposed r ecommended o rders were due on September 4, 2014 , and

Respondent filed one on time .

Unless otherwise indicated, citations to the Florida

Statutes refer to the 20 1 4 Florida Statutes.

FINDINGS OF FACT

1. On October 15, 2012 , Petitioner Yolette Tema (" Tema ")

signed an application for licensure as a registered nurse, which

she mailed to the Department of Health for review by Respondent

Board of Nursing (the "Board").

2. Item No. 9 o f the application sought information about

the a pplicant's disciplinary history. Four subparts ( lettered A

through D) ask ed question s that called for a "yes" or "no" answer ,

which the applicant was to give by marking the applicable check

box. T he first qu estion ( " 9 A" ) was:

Have you ever been denied or is there now any

proceeding to deny your application for any

healthcare license to practice in Florida o r

any other state, jurisdiction or country?

Tema answered, "N o."

3 . In Item No. 10 of the application, there appeared above

the signature line the following declaration s :

I recognize that providing false information

may result in disciplinary action against my

license or criminal penalties pursuant to

Sections 456.067, 775.083, and 775.084,

Florida Statute s.

I have carefully read the questions in the

foregoing application and have answered them

completely, without reservations of any

kind. Should I furnish any false

information in this application, I hereby

agree that such act shall constitute cause

for d enial, suspension or revocation of my

l i cense to practice as a Registered Nurse or

Licensed Practical Nurse in the State of

Florida.

Tema's signature manifested her agreement with the foregoing

declaration s .

4. Despite having acknowledged the har d consequences of

deceit, Tema's negative answer to the question of whether she

ever had suffered the denial of an application for licensure was

false. In fact, in June 2011, the Virginia Board of Nursing had

denied Tema's application for licensure as a pra ctical nurse, on

the ground that she had provided false information in an effort

to obtain a license by fraud, deceit, or material omission.

Tema had received timely, contemporaneous notice of the Virginia

Board of Nursing's final decision , and she was fu lly aware of

th at disposition at all times relevant to this case .

5. When she completed the Florida application in

October 2012, therefore, Tema knew that her response to

question 9A was false. Because the information Tema failed to

disclose obviously would have hurt her chances of obtaining a

license in Florida, the undersigned disbelieves Tema's

explanation for the material omission, which was that she simply

made a mistake . 1 / I nstead , the undersigned infers that Tema

intentionally omitted the damaging fact of the Virginia denial

in hopes that the Board would not discover it. 2 /

6. The Board did, however, discover the Virginia decision

while reviewing Tema's application. Based on th at past denial

and Tema's present fa ilure to disclose it, the Board determined

that Tema's Florida a pplication should be denied . The Board's

preliminary decision was communicated to Tema th r ough a Notice

of Intent to Deny dated February 11, 2014 .

Determinations of Ultimate Fact

7. Tema is guilty of having an application for a

license to practice nursing denied by the licensing authority

of another state, which is a disciplinable offense under

section 464.018(1)(b), Florida Statutes. 3 /

8. Tema is guilty of attempting to procure a license to

practice nursing by knowing misrepresentation, which is a

disciplinable offense under section 464.018(1)(a).

CONCLUSIONS OF LAW

9 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ect ions 120.569 and 120.57(1), Florida Statutes (2014).

10. As the applicant for licensure, Tema bears the

ultimate burden of proving by a preponderance of the evidence

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

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

§ 120.57(1)(j), Fla. Stat.

11. The Board , however, was required to state with

particularity the reasons for de nying Tema's application ,

§ 120.60(3), which it did in the Notice of Intent to Deny.

There, the Board ga ve two grounds for its intended action :

one, that Tema's application for licensure as a practical nurse

had been d enied in the state of Virginia; and , two, that Tema

had falsely supplied a negative answer to a question on the

application asking whether he r disciplinary history included

any previous denials of licensure. The Board bears the burden

of proving these allegations of wrongdoing on Tema's part. See

M.H. v. Dep't of Child. & Fam. Servs. , 977 So. 2d 755, 761

(Fla. 2d DCA 2008)("[I]f the licensing agency proposes to deny

the requested license based on specific acts of misconduct,

then the agency assumes the burden of proving the specific acts

of misconduct that it claims demonstrate the ap plicant's lack

of fitness to be licensed."); Dep't of Banking & Fin., Div. of

Sec. & Inv. Prot. v. Osborne Stern & Co . , 670 So. 2d 932, 934 -

935 (Fla. 1996) .

12. Section 464.018 provides in pertinent part as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2) :

(a) Procuring, attempting to procure, or

renewing a license to practice nursing by

bribery, by knowing misrepresentations, or

through an error of the department or the

board.

(b) Having a license to practice nursing

revoked, suspended, or otherwise acted

against, including the denial of licensure,

by the licensing authority of another state,

territory, or country.

* * *

(2) Th e board may enter an order denying

licensure or imposing any of the penalties

in s. 456.072(2) against any applicant for

licensure or licensee who is found guilty of

violating any provision of subsection (1) of

this section or who is found guilty of

violat ing any provision of s. 456.072(1).

13. As discussed above, the undersigned determined, based

upon a preponderance of the evidence, that Tema committed the

offenses d efined in section 464.018(1)(a) and (b), as charged in

the Notice of Intent to Deny. These violations justify the

Board's preliminary decision to deny Tema's application for

licensure as a registered nurse. § 464.018(2), Fla. Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Nursing enter a final

order denying Tema's application for licensure as a registered

nurse.

DONE AND ENTERED this 10th day of September , 20 14 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of September , 20 14 .

ENDNOTE S

1 / Tema also testified, somewhat inconsistently, that she did

not reveal the Virginia disposition because she considers

herself innocent of any wrongdoing in that state and regards the

decision taken there to be erron eous. This is likely true as

far as it goes ÏÏ but is in no way exculpatory.

2 / See Jean - Noel v. Bd. of Nursing , Case No. 13 - 0838, 2013 Fla.

Div. Adm. Hear. LEXIS 348 , 15 n.7 (Fla. DOAH June 11, 2013; Fla.

Bd. of Nursing Aug. 28, 2013)(collecting cases on permissibility

of inferring intent to deceive from basic fact of withholding

damaging information when under duty to disclose).

3 / The relevant provisions of section 464.018 remained the same

throughout the entire period during which the events giving rise

to this proceeding unfolded. Compare § 464.018, Fla. Stat.

(2010) , with § 464.018, Fla. Stat. (2014).

COPIES FURNISHED :

Yolette Tema

115 Northeast 133rd Street

Miami, Florida 33161

Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 3252

(eServed)

Lavigna A. Kirkpatrick, BSN, RN , Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

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 issu e the Final Order in this case.