14-005243 Ashley Q. Warren vs. Board Of Nursing Status: Closed Recommended Order on Tuesday, February 17, 2015.

Summary: Petitioner's CNA application should be denied because she failed level 2 background screening. Petitioner is not guilty of violating sec. 464.018 and 456.072, as charged, because sections are inapplicable to Petitioner as a CNA applicant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASHLEY Q. WARREN,

Petitioner,

vs. Case No. 14 - 5243

BOARD OF NURSING,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this c ause was held

by video teleconference between sites in St. Petersburg and

Tallahassee, Florida, on January 14, 2015, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Ashley Q. Warren , pro se

4627 1/2 12th Avenue South

St. Petersburg, Florida 33711 - 2307

For Respondent: Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether Pet itioner ' s application for certification as a

certified nursing assistant (CNA) should be approved or denied.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated August 13, 2014,

Respondent Board of Nursing (Respondent or Board ) notified

Petitioner Ash ley Q. Warren (Ms. Warren) that it intended to deny

her application for certification as a CNA by examination

(Application). Respondent ' s decision was based on Ms. Warren ' s

alleged misrepresentation of her criminal history on her

Application and her not p assing the level 2 criminal background

screening. Ms. Warren timely requested a formal hearing, and on

November 6, 2014, Respondent referred the matter to the Division

of Administrative Hearings, where the formal hearing was

conducted by the undersigned.

Both parties attended the formal hearing , and Ms. Warren was

the only witness to testify. Petitioner ' s Exhibit 1 and

Respondent ' s Exhibit 1 were both received into evidence.

A T ranscript of the formal hearing was filed on January 21,

2015. On January 30, 2015, Petitioner filed a statement wherein

she outlines the reasons why her Application should be approved.

Respondent did not file a proposed recommended order.

Petitioner ' s statement was considered in the preparation of th is

Recommended Order.

FIND ING S OF FACT

1. On or about October 15, 2013, Ms. Warren submitted to

Respondent an a pplication for certification as a CNA. On or

about August 15, 2014, Respondent informed Ms. Warren that her

Application was being denied for two reasons. The first reas on

offered for denial is that Ms. Warren violated sections

464.018(1)(a) and 456.072(1)(h), Florida Statutes (2014), 1/ by

checking the " no " box , instead of the " yes " box , when asked about

her criminal history on the Application. The second reason

offered for denial is that Ms. Warren is not eligible for

licensure because she did not pass the criminal background

screening required by section 400.215, Florida Statutes. 2/

A. Criminal Background Screening

2. On March 5, 2012, Ms. Warren entered a plea of nolo

contendere to a single count of " resisting an officer with

violence " in violation of section 843.01, Florida Statutes. The

offense occurred during calendar year 2010. Section 843.01

provides , in part , that any person found to be in violation of

thi s section " is guilty of a felony of the third degree. "

According to the Order of Probation for this charge, the c ourt

withheld adjudication , and Ms. Warren was placed on probation for

a period of 30 days. On April 4, 2012, the Florida Department of

Corre ctions sent Ms. Warren a notice of " Termination of

Supervision " and noted therein that " [y]ou are hereby notified

that you completed your term(s) of supervision on 4/4/12 . . .

and are no longer under the supervision of the Department of

Corrections. "

3. Section 464.203 provides , in part , that " [t]he board

shall issue a certificate to practice as a CNA to any person who

demonstrates a minimum competency to read and write and

successfully passes the required background screening pursuant to

s. 400.215. "

4. Section 400.215 provides , in part , that " [t]he agency

shall require level 2 background screening for personnel as

required in s. 408.809(1)(e) , " Florida Statutes. Section

408.809(1)(e) provides , in part , that individuals, like

Ms. Warren, shall be sub ject to a level 2 background screening

pursuant to chapter 435. Section 435.04(2) , Florida Statutes,

provides , in part , that " security background investigations under

this section must ensure that no persons subject to the

provisions of this section have . . . entered a plea of nolo

contendere " to " [s]ection 843.01, relating to resisting arrest

with violence. " The preponderance of the evidence establishes

that Ms. Warren failed her background screening test as a result

of her plea of nolo contendere to th e offense of resisting arrest

with violence.

B. Alleged Application Misrepresentation

5. The Notice of Intent to Deny provides , in part , as

follows:

This matter came before the Board of Nursing

at a duly - noticed public meeting on

August 8, 2014, in Orl ando, Florida. The

applicant has applied for certification as a

certified nursing assistant by examination.

The applicant entered a plea of nolo

contendere to a charge of resisting an

officer with violence in 2012. The

application includes the following question:

Have you EVER 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? You

must include all misdemeanors and felonies,

even if adjudication was withheld . The

applicant answered the question NO .

6. It is undisputed that Ms. Warren checked the " n o " box in

response to the question. It is also undisputed that Ms. Warren

should have checked the " yes " box in response to the question

given that on March 5, 2012, she entered a plea of nolo

contendere to the felony charge of resisting an officer with

violence.

7. By correspondence dated August 15, 2014, the Board

informed Ms. Warren that it was the Board ' s intent to deny her

Application because she did not truthfully answer the question

about her criminal background. In response to the Notice of

Intent to Deny , Ms. Warren, by correspondence dated August 21,

2014, informed Respondent of the following:

To the State of Florida Board of Nursing, I

Ashley Warren made a mistake and checked off

the wrong box. I was reading so fast and I

was not aware of what I checked off in the

box. I had checked off the wrong question.

If possible, can I do another application

because I would love to become a CNA, and I

really hate I made [a] mistake in checking

the wrong box.

8. One of the sections of the Application submitted by

Ms. Warren is titled , " Initial Licensure - Individual. " This

section asks multiple questions with subparts. Question 1 of

this section direct s t hat if the applicant " responded ' no, ' skip

to #2. " Even though Ms. Warren answered " no " to the question,

she , nevertheless , proceeded to answer questions 1.a., 1.b.,

1.c., and 1.d. Question 3 of this section direct s that if the

applicant respond s " [n] o, do not answer 3.a. " Even though

Ms. Warren answered " no " to question 3, she , nevertheless ,

proceeded to answer question 3.a. The same pattern was repeated

with respect to question 4 wherein Ms. Warren answered " no " and

then disregarded the directive not to answer questions 4.a.

and 4.b. The multiple errors made by Ms. Warren when completing

the Application support her contention that she was rushing while

completing the A pplication.

9. During the formal hearing , Ms. Warren testified as

follows:

Q: Ok ay. Now, you were arrested again in

2010?

A: Yes.

* * *

Q: And you were charged with resisting an

officer with violence?

A: Yes.

* * *

Q: Did they put you in jail?

A: Yes.

Q: And you went to court on that charge?

A: Yes.

Q: Okay. I ' m lo oking at page 20 of the

exhibit, your Honor. You had an order

withholding adjudication; is that correct?

A: Yes.

Q: And you pled nolo contendere or no

contest to that charge?

A: Yes.

Q: Were you put on probation?

A: I was put on PYT.

Q: All right. What is PYT?

A: It ' s something like a probation that

you complete and it will be off your record.

* * *

Q: Okay. Now, on the application the

question concerning criminal history says

" have you ever been convicted of or entered

a plea of guilty, nol o contendere or no

contest to a crime in any jurisdiction other

than a minor traffic offense. " What about

that don ' t you understand?

A: I really don ' t understand none of it.

* * *

Q: Yes. You testified earlier that in

your 2010 charge you pled no lo contendere or

no contest to resisting an officer with

violence. You said that was correct. Is

that correct?

A: Yes.

Q: So did you understand what a nolo

contendere plea was in 2010?

A: No.

Q: Did your lawyer advise you to plead

nolo contendere?

A : Yes.

Q: Did your lawyer explain to you what

that kind of plea meant?

A: No.

Q: Did the judge explain to you what that

kind of plea meant?

A: Yes.

Q: Once it was explained to you, you

decided to plea nolo contendere?

A: I didn ' t understand the quest ion when I

was reading over it.

Formal hearing T ranscript , pp. 17 Î 21 .

10. Additionally, Ms. Warren also testified as follows:

Q: In responding to the criminal history

question, if you didn ' t understand it, why

didn ' t you just leave it blank?

A: Because I didn ' t know if I would have

sent it off and leave it blank if I would

have got my license, but, at the same time,

when I had went through the probation office

and everything, they told me that everything

was going to be off my record, that I

completed al l my terms and everything

because it was my first time on having adult

charge. So I really didn ' t understand none

of that. So I ' m going by their word. So

I ' m thinking if I don ' t have it on my

record, I completed it, I can put " no " on

the answer. It ' s n ot on my record.

Formal hearing T ranscript , pp. 24 - 25.

11. Ms. Warren ' s testimony that she believed it was proper

to answer " no " to the criminal background question on the

Application is credible. The fact that Ms. Warren made multiple

mistakes on her A pplication, coupled with her genuine belief that

the charge of resisting an officer with violence was no longer on

her record, indicates that Ms. Warren acted honestly and did not

intend to misrepresent her criminal history when completing her

Application.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2014).

13. As the applicant for certification, Ms. Warren bears

the ultimate burden of proving by a preponderance of the evidence

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

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

14. The standard of proof that Ms. Warren must meet is by a

preponderance of the evidence. § 120.57(1)(j) , Fla. Stat . 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).

15. Respondent denied Ms. Warren ' s A pplication based on

alleged violations of sections 464.018(1)(a) and 456.072(1)(h) .

These statutes provide that attempting to procure a license to

practice nursing by knowing misrepresentations, fraudulen t

misrepresentations, or deceit constitutes grounds to deny the

license.

16. To the extent Respondent seeks to deny Ms. Warren ' s

A pplication on these grounds, Respondent bears the burden of

presenting evidence of these allegations of wrongdoing on

Ms. Wa rren ' 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 speci fic acts of misconduct that it claims demonstrate the

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

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

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

17. As discussed above in the Findings of Fact, the

preponderance of the evidence establishes that Ms. Warren failed

her background screening test , and as a consequence thereof , it

is appropriate for Respondent to deny her Application.

18. As for the allegation that Ms. Warren made certain

mi srepresentations on her Application, 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.

* * *

(2) The board may enter an order denying

licensure or imposing any of the penalties

in s. 456.072(2) aga inst 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

violating any provision of s. 456.072(1).

19. Contrary to this allegation, Ms. Warren is not

attemptin g to secure a " nursing license " within the meaning of

section 464.018 , but is , instead , attempting to secure

" certification " as a " certified nursing assistant " within the

meaning of section 464.204. Section 464.204 sets forth

disciplinary sanctions for CN A s or those seeking to become one.

Specifically, section 464.204(1)(a) provides , in part , that " the

board may impose disciplinary sanctions " against an applicant who

" attempt[s] to obtain certification . . . by bribery,

misrepresentation, deceit, or throu gh an error of the board. "

20. It is a well - settled rule of statutory construction

that a special statute covering a particular subject matter is

controlling over a general statutory provision covering the same

and other subjects in general terms. Adams v. Culver , 111 So. 2d

665, 667 (Fla. 1959). For reasons not explained, Respondent did

not charge Ms. Warren with violating section 464.204, which by

its express terms applies to Ms. Warren as an applicant for

certification to become a CNA . Under the pri nciple of statutory

construction espoused in Adams v. Culver , Respondent erroneously

charged Ms. Warren with violating statutory provisions which are

inapplicable to her circumstances. Accordingly, Ms. Warren,

under the facts present in the instant case, did not violate, as

a matter of law, section s 464.018 and 456.072 , as alleged.

Respondent failed to meet its burden of proof as to this

allegation. Furthermore, even if Respondent had properly charged

Ms. Warren with violating section 464.204, the prepon derance of

the evidence does not establish that Ms. Warren misrepresented

her criminal history on the Application , but instead acted

honestly when completing the same.

2 1. Because Ms. Warren failed the level 2 background

screening, it is appropriate for Re spondent to deny her

Application. It is not appropriate , however, for Respondent to

deny Ms. Warren ' s Application on the grounds that she violated

sections 464.018 and 456.072, as alleged in the Notice of Intent

to Deny.

RECOMMENDATION

Based on the fore going Findings of Fact and Conclusions of

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

final order denying Petitioner, Ashley Q. Warren ' s , A pplication

for certification as a C NA due to her failure to pass the l evel 2

background screeni ng.

DONE AND ENTERED this 1 7 th day of February , 2015 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, 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 1 7 th day of February , 2015 .

ENDNOTE S

1/ All statutory references are to 2014 Florida Statutes, unless

otherwise indicated.

2/ Respondent , as part of the background screening process,

requested that Ms. Warren provide information related to a

misdemeanor charge that she received when she was 15 years of

age. Counsel for Respondent advised during the formal hearing

that " [o]bviously [Ms. Warren] did not have to report that in

response to the question [about her criminal background] because

she was adjudicated delinquent. " Formal hearing T ranscript ,

pp. 15 - 16. Accordingly, there will be no discuss ion of the

" juvenile charge " in this Recommended Order.

COPIES FURNISHED:

Lee Ann Gustafson, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Ashley Q. Warren

4627 1/2 12th Avenue South

St. Pete rsburg, Florida 33711 - 2307

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C02

Tallahassee, Florida 32399 - 3252

(eServed)

Ann - Lynn Denker, PhD, ARNP Chair

Board of Nursing

Department of Health

4052 Ba ld Cypress Way , Bin C02

Tallahassee, Florida 32399 - 3252

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the ri ght 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.