14-003095 Denise Stralka vs. Board Of Nursing Status: Closed Recommended Order on Friday, September 26, 2014.

Summary: Petitioner failed to appear at the hearing, and therefore to rebut the prima facie showing of intentional misrepresentation on her application for CNA licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENISE STRALKA,

Petitioner,

vs. Case No. 14 - 3095

BOARD OF NURSING,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

August 27, 2014, in Leesburg, Florida, before W. David Watkins,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Lee Ann Gustafson, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether PetitionerÓs application for licensure as a

C ertified N ursing A ssista nt should be approved or denied.

PRELIMINARY STATEME NT

On or about March 12, 2014, Petitioner submitted an

application to the Florida Board of Nursing (the Board) for

licensure as a Certified Nursing Assistant (CNA). On April 21,

2014 , the Board issued a Notice of Intent to Deny PetitionerÓs

application. Thereafter, Petitioner timely filed a request for

an administrative hearing, which the Board forwarded on July 2,

2014, to the Division of Administrative Hearings (DOAH).

By Notice dated July 21, 2014, the final hearing was

scheduled for August 27, 2014, a t 9:30 a.m. in Leesburg,

Florida. The cause came on for hearing as noticed. The

Petitioner failed to appear at the hearing, and no evidence was

adduced in proof of the Petitioner's claims.

Respondent was represented at the hearing by counsel, who

offered in evidence one exhibit, consisting of a certified copy

of PetitionerÓs CNA application file. Respondent did not call

any witnesses to testify.

At the conclusion of the presentation of RespondentÓs case,

Respondent advised that the Board would not be ord ering a copy

of the transcript of the final hearing. Board counsel requested

that proposed recommended orders be filed within ten days of the

date of hearing. That request was granted.

As of 10:10 a.m. Petitioner had still not appeared at the

hearing. P etitioner having been given ample opportunity to

appear, the hearing was adjourned at that time.

Respondent timely filed its Proposed Recommended Order on

September 2, 2014. Petitioner did not file a proposed

recommended order.

FINDING S OF FACT

1. This c ause was scheduled for hearing for August 27,

2014, at the City Hall, 2 nd Floor Conference Room, 501 West

Meadow Street, Leesburg, Florida, at 9:30 a.m. Eastern Time.

The Notice of Hearing was sent to the Petitioner's last known

address of record at 3423 Southwinds Cove Way, Leesburg, Florida

34748, notifying the Petitioner of the hearing on the above

date, time, and place. There was no communication from the

Petitioner by motion, letter, telephonically, or otherwise

indicating that the Petitioner had an y difficulty which might

prevent her attending the hearing at the noticed date, time, and

place.

2. Upon convening the hearing, the Petitioner failed to

appear. A substantial period of time was allowed to elapse,

(forty minutes) in which the undersigned and the Respondent's

counsel waited for the Petitioner to appear to put on her case.

Additionally, the undersigned and Respondent's counsel did

observe within the building at the hearing site and in the

immediate environs of the building to see if the Pet itioner was

observed in the vicinity of the hearing site. The Petitioner

was not observed in the environs of the hearing site and never

appeared at the hearing during the additional time allowed for

her appearance.

3. More than three weeks have elapsed s ince the hearing

date, and there has been no communication from the Petitioner

with the undersigned, and no indication from the Respondent that

any communication from the Petitioner has been received by the

Respondent, which might explain the Petitioner's absence from

the noticed hearing.

4. Petitioner applied for a license as a CNA . A Notice of

Intent to Deny was issued by the Board on April 21, 2014.

5. Petitioner was convicted of misdemeanor theft and

attempted child endangerment in 2002.

6. In her r equest for hearing, Petitioner did not dispute

the convictions.

7. The application for CNA licensure contained 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 jurisdic tion other than a minor

traffic offense? You must include all

misdemeanors and felonies even if

adjudication was withheld. [emphasis

added] .

8. Petitioner answered the above question ÐNoÑ.

9. PetitionerÓs negative answer to the above question was

untr uthful.

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

jurisdiction of this action pursuant to sections 120.569, 120.57

and 120.60, Florida Statutes ( 2013 ) .

11 . Section 456.072(1)(h), Florida Statutes, provides that

grounds for denial of an application include attempting to

obtain or obtaining a license to practice a profession by

fraudulent misrepresentation.

12. Section 456.018(1)(a) provides that grounds for denial

of an application include procuring or attempting to procure a

lice nse to practice nursing by knowing misrepresentations.

13. Respondent made a prima facie case that Petitioner

made a misrepresentation on her application.

14. Petitioner failed to appear and demonstrate that she

did not intend to deceive the Board or tha t the question was

confusing or ambiguous.

15. As an applicant for licensure, Petitioner bears the

burden of proof in this proceeding. Dep't of Transp. v. J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep't

of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner failed

to appear and has failed to communicate with the undersigned ,

and no indication from the Respondent has been received by the

undersigned which would indicate any effort by the Petitioner to

communicate with the Respondent on the day of or since the day

of the noticed hearing.

16. Petitioner failed to rebut RespondentÓs prima facie

showing that Petitioner made an intentional misrepresentation on

her application for licensure. As such, Respondent is

justified, pursuant to s ections 456.072(1)(h) and 456.018(1)(a),

in denying PetitionerÓs application.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is RECOMMENDED that the application of

DENISE STRALKA for licensure as a certified nur sing assistant be

denied.

DONE AND ENTERED this 2 6 th day of September , 2014 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee 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 2 6 th day of September, 2014 .

COPIES FURNISHED:

Lee Ann Gustafson, Esqu ire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Denise Stralka

3423 Southwinds Cove Way

Leesburg, Florida 34748

Joe Baker, Jr., Executive Director

Department of Health, Division of Medical

Quali ty Assurance Boards/Councils

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Lavigna A. Kirkpatrick, BS, RN, Chair

Department of Health, Division of Medical

Quality Assurance Boards/Councils

4052 Bald Cypress Way

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way

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 R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.