14-005242 Chantavia Cooper vs. Board Of Nursing Status: Closed Recommended Order on Friday, May 8, 2015.

Summary: Petitioner proved, by a preponderance of the evidence, that she did not attempt to obtain a license to practice as a certified nursing assistant by bribery, knowing or fraudulent misrepresentation, or deceit. Recommended approval of application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Chantavia Cooper,

Petitioner,

vs.

Case No. 14 - 5242

Board of Nursing,

Respondent.

/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes (2014), 1/ before Cathy M.

Sellers, an Administrative Law Judge of the Division of

Administrative Hearings ("DOAH"), on March 9, 2015, by video

teleconference at sites in Port St. Lucie and Tallahassee,

Fl orida.

APPEARANCES

For Petitioner: Chantavia Cooper, pro se

2401 North 42nd Street

Fort Pierce, Florida 34946

For Respondent: Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue for resolution in this case is whether

Petitioner , on her application for certification as a certified

nursing assistant (ÐCNAÑ) by examination, intentionally denied

the fact that she previously had disciplinary action taken

against her license, such that her application should be denied

on the basis of attempting to obtain a CNA license by bribery,

knowing or frau dulent misrepresentation, 2/ or deceit.

PRELIMINARY STATEMENT

On August 14, 2014, Respondent, Board of Nursing, issued a

Notice of Intent to Deny the application for licensure a s a

certified nursing assistant by examination filed by Petitioner,

Chantavia Cooper . Respondent's decision was based , in part, on

Petitioner's negative answer on the application inquiring

whether Petitioner had ever had disciplinary action taken

against her license to practice any healthcare - related

profession by the licensing aut hority. Petitioner had, in fact,

previously had her CNA license revoked. Respondent accused

Petitioner of attempting to obtain a CNA license by bribery,

misrepresentation, or deceit. Respondent's proposed action to

deny Petitioner's application also was based, in part, on the

previous revocation of her CNA license.

Petitioner timely requested an administrative hearing

challenging Respondent's proposed denial of her application , and

the matter was referred to DOAH to conduct a hearing pursuant to

sections 120.569 and 120.57(1). The hearing initially was

scheduled for December 23, 2014, but pursuant to Respondent's

motion, was continued and rescheduled for March 9 , 2015.

The final hearing was conducted on March 9 , 2015.

Petitioner testified on her own behalf and did not offer any

exhibits for admission into evidence. Respondent did not

present any witnesses . Respondent's Exhibit 1, consisting of

the license application, was admitted into evidence without

objection , and the undersigned took official recognition of the

Final Order issued by the Department of Health, Board of Nursing

in Case No. 2009 - 08241.

The one - volume T ranscript was filed with DOAH on April 8,

2015 . Pur suant to Florida Administrative Code Rules 28 - 106.215

and 28 - 106.103, the parties were give n until April 20, 2015, to

file proposed recommended orders. Respondent's timely filed

Proposed Recommended Order was duly considered in preparing this

Recommended Order. Petitioner did not file a proposed

recommended order.

FINDINGS OF FACT

1. Petiti oner has applied to become a C NA pursuant to

chapter 464, Florida Statutes.

2. Respondent is the state agency responsible for

reviewing applications for licensure as a CNA and determining

whether such applicants are eligible to take the nursing

assistant competency examination, which consists of a written

test and a skills - demonstration test. Successful completion of

both portions is necessary to obtain a CNA license by

examination.

3. On May 7, 2010, Respondent issued a final order

permanently revoking Petitioner's CNA license, in Department of

Health, Board of Nursing Case No. 2009 - 08241 , on the basis of

her commission of various criminal offenses . 3 /

4 . On April 20, 2014, Petitioner filed an application

again seeking to be certified as a CNA by examination.

5 . On the application form, Petitioner truthfully answered

" yes " to the item asking whether she had been convicted of, or

entered a plea of guilty, nolo contendere, or no contest to, a

crime in any jurisdiction, other than a minor traffic offense.

She inaccurately answered " no " to the item asking if she had

ever had disciplinary action taken against her certificate to

practice any healthcare - related profession by the licensing

authority in Florida or in any other state, jurisdiction, or

country.

6 . On May 7, 2014, Respondent notified Petitioner that her

application was incomplete pending Respondent's receipt of

information regarding judicial disposition of her arrests,

sentence completion status for each offense, and a typewritten

explanation addr essing each offense. Petitioner provided the

requested information, including a lengthy explanation of the

circumstances surrounding each of her criminal offenses. At

that time, Petitioner also provided character letters, including

one from the manager o f Fort Pierce Health Care attesting to

Petitioner's trustworthiness and diligence in performing her

job - related duties at that facility.

7 . On August 8, 2014, Respondent issued the Notice of

Intent to Deny ( " Notice " ) Petitioner's application for

certific ation as a CNA by examination. The Notice cited two

grounds for denial: (1) having a license to practice nursing or

any healthcare - related profession acted against by a licensing

authority; and (2) attempting to obtain a nursing license by

bribery, misre presentation, or deceit, by having incorrectly

answered " no " to the application question regarding the previous

revocation of her CNA license.

8 . At the hearing, Petitioner testified that her incorrect

answer regarding previous disciplinary action agai nst her

license was a mistake. She explained that she had received

assistance in preparing her application from personnel in the

CNA training program from which she had taken classes to prepare

for the CNA certification examination. T raining personnel

fi lled out the application form and Petitioner provided the

accompanying written information . Petitioner quickly reviewed

the application form before signing it and in doing so,

inadvertently overlooked the incorrect response to the item

inquiring about previous licensure disciplinary action .

9 . When Respondent issued its Notice denying her

application on that basis, Petitioner filed a revised

application, dated August 30, 2014, correcting the response to

that item to reflect the previous disciplinar y action against

her CNA license. She provided an accompanying written

explanation regarding the mistaken response and the previous

action revoking her CNA license due to her criminal history. 4 /

10 . The undersigned finds credible and persuasive

Petition er's explanation that her incorrect response to the item

regarding previous licensure disciplinary action was a mistake.

This determination is bolstered by Petitioner's truthful correct

answer on the application regarding her criminal history, which

was t he basis for the previous discipline against her license.

Indeed, had Petitioner intended to conceal the previous

disciplinary action against her license, it is likely she also

would have answered " no " to the questions regarding her criminal

history, whic h gave rise to the discipline .

1 1 . The undersigned rejects Respondent's position that

Petitioner was intentionally untruthful ÏÏ i.e., lied ÏÏ on her

April 20, 2014, license application about the previous

disciplinary action against her license . For the reasons

discussed above, i t is determined that Petitioner has shown, by

a preponderance of the evidence, that she did not attempt to

obtain a CNA license by briber y, knowing or fraudulent

misrepresentation, or deceit , in violation of sections

464.018(1)(a) or 456.072(1)(h).

1 2 . At the final hearing, Petitioner expressed sincere

contrition and remorse for her criminal offenses , noted that she

already had paid the price for such conduct by having her

license previously revoked , and expressed hope and desire that

she could be relicensed to practice a profession that she loves .

C O NCLUSIONS OF LAW

1 3 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

1 4 . As the appl icant for licensure, Petitioner bears the

ultimate burden of proving, by a preponderance of the evidence,

that her application for licensure as a CNA by certification by

examination should be granted. Fla. Dep't of Transp. v . J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); § 120.57(1)(j),

Fla. Stat. However , pursuant to section 120.60(3), Florida

Statutes, Respondent was required to state with particularity

the reasons for denying Petitioner's application for licensure,

and it did this in the Notice. Respondent bears the burden of

proving the allegations of wrongdoing on Petitioner's part that

constitute the basis for its proposed denial of her license

application. 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

applicant's lack of fitness to b e licensed."); Dep't of Banking

& Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670

So. 2d 932, 934 - 35 (Fla. 1996).

1 5 . Section 464.018 states in pertinent part: "(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. "

1 6 . For the reasons disc ussed above, it is concluded that

Petitioner did not attempt to obtain a CNA license by bribery,

knowing misrepresentation s , or deceit. S ee Walker v. Dep't of

Bus. & Prof. Reg. , 705 So. 2d 652 (Fla. 5th DCA 1998)( intent to

misrepresent is required for showing of violation of statute on

basis of "misrepresentation," which, in turn, r equires a showing

of knowledge). See also Miller v. Board of Nursing , Case

No. 14 - 0877 (Fla. DOAH June 30, 2014; Fla. Bd. of Nursing Sept.

5, 2014); Pratt v. Bd. of Nursing , Case No. 13 - 2417 (Fla. DOAH

Oct. 22, 2013 ; Fla. Bd. of Nursing Dec. 19, 2013); Fenelon v.

Bd. of Nursing , Case No. 12 - 3553 (Fla. DOAH Mar. 25, 2013; Fla.

Bd. of Nursing Oct. 22, 2013).

Accordingly, section 464.018(1)(a) does not provide a basis for

deny ing Petitioner's license application.

1 7 . Section 456.072 , also cited as a basis for denial of

Petitioner's application, states in pertinent part:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

( f) Having a license or the authority to

practice any regulated profession revoked,

suspended, or otherwise acted against,

including the denial of licensure, by the

licensing authority of any jurisdiction,

including its agencies or subdivisions, for

a violation that would constitute a

violation under Florida law. The licensing

authorityÓs acceptance of a relinquishment

of licensure, stipulation, consent order, or

other settlement, offered in response to or

in anticip ation of the filing of charges

against the license, shall be construed as

action against the license.

* * *

(h) Attempting to obtain, obtaining, or

renewing a license to practice a profession

by bribery, by fraudulent misrepresentation,

or through an error of the department or the

board.

* * *

(2) When the board, or the department when

there is no board, finds any person guilty

of the grounds set forth in subsection (1)

or of any grounds set forth in the

applicable practice a ct, including conduct

constituting a substantial violation of

subsection (1) or a violation of the

applicable practice act which occurred prior

to obtaining a license, it may enter an

order imposing one or more of the following

penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

§ 456.072, Fla. Stat. (emphasis added).

1 8 . For the reasons discussed above, it is concluded that

Petitioner did not attempt to obtain a CNA license by bribery ,

fraudulent misrepre sentation , or deceit . See Gandy v.

Transworld Computer Tech. Group , 787 So. 2d 116 (Fla. 2d DCA

2001)(proving fraud requires a showing that the person making a

statement knows, at the time the statement is made, that it is

false.) Accordingly, section 456.072(1)(h) does not constitute

a basis for denying Petitioner's application for a CNA license

by examination.

1 9 . It is undisputed that Petitioner's CNA license was

permanently revoked by Respondent in 2010 for various criminal

offenses. 5 / Section 456.072( 2 ) grants Respondent the authority

and discretion to refuse to certify an application for a license

when the applicant previously has had a license acted against by

the licensing authority. Pursuant to this statute, as a matter

of law, Respondent may ÏÏ b ut , within its sole discretion, is not

required to ÏÏ deny Petitioner's application on that basis. 6 /

20 . Based on the foregoing, it is concluded that

Petitioner has demonstrated, by the preponderance of the

evidence, that she did not attempt to obta in certification as a

certified nursing assistant by examination by bribery, knowing

or fraudulent misrepresentation, or deceit . Accordingly,

section s 464.018(1) (a) and 456.072(1)(f) and (h) do not

constitute bases for denying her application for certification

by examination . 7 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Department of Health,

Board of Nursing , enter a final order granting Petitioner's

application for cert ification as a certified nursing assistant

by examination.

DONE AND ENTERED this 8th day of Ma y , 2015, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8 th day of Ma y , 2015.

ENDNOTES

1/ All references are to 2014 Florida Statutes.

2/ The Notice of Intent to Deny Petitioner's license application

state s , in pertinent part , that Respondent's proposed denial is

based on a determination that Petitioner violat ed sections

464.018(1)(a) and 456.072(1)( f ), Florida Statutes, " by

attempting to obtain a nursing license by bribery,

misrepresentation, or deceit." Section 464.018(1)(a) states

that denial of a license may be grounded in " procuring,

attempting to procure, or renewing a license to practice nursing

by bribery, knowing misrepresentations, or through an error of

the department or the board." § 464.018(1)(a), Fla. Stat.

(emphasis added). Section 464.072(1)(a) states that

disciplinary actions may be taken for " making misleading,

deceptive, or fraudulent representations in or related to the

practice of the licensee's profession." § 456.072(1)(a), Fla.

Stat. (emphasis added). The undersigned has applied the stated

standard in these statutes ÏÏ which require a showing of intent ÏÏ

in determining whether Petitioner has violated them such that

her license application should be denied. See paragraphs 15 and

17 , infra.

3 / The Final Order entered by Respondent in Case No. 2009 - 08241

indicates that , in addition to her license revocation,

Petitioner also suffered criminal sanctions as a result of her

previous actions .

4 / Respondent apparently did not take any proposed action on the

application form Petitioner submitted on August 30, 2014. The

proposed agency action at issue in this proceeding is only the

Notice to deny the applica tion submitted on April 20, 2014.

5 / See infra. note 7.

6 / The undersigned further notes that section 464.018(3)

authorizes Respondent to reinstate a license or cause a license

to be issued to a person it previous determined unqualified

provided certain conditions are met.

7 / Because it is undisputed that Petitioner's license previous ly

was subject to discipline and because Respondent possesses the

sole discretion under section 456.072(2) to deny or decide to

grant Petitioner's application for violations of section

456.072(1), the undersigned makes no recommendation as to

whether Petit ioner's license should be granted or denied under

that statute.

COPIES FURNISHED:

Joe Baker, Jr., Executive Director

D epartment of H ealth

4052 Bald Cypress Way , Bin C02

Tallahassee, Florida 32399

(eServed)

Ann - Lynn Denker, PhD, ARNP Chair

D epartment of H ealth

4052 Bald Cypress Way , Bin C02

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

D epartment of H ealth

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Chantavia M. Cooper

2401 North 42nd Street

Fort Pierce, Florida 34946

Chantavia M. Cooper

3103 Avenue G , Apartment B

Fort Pierce, Florida 34947

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

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.