15-007253 Stephanie Decelestino vs. Board Of Nursing Status: Closed Recommended Order on Tuesday, March 29, 2016.

Summary: In her application for licensure as a practical nurse, Petitioner reasonably, if arguably mistaken, denied participating in a program for treatment of alcohol abuse; Respondent should not decline to certify the application on this basis.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHANIE DECELESTINO,

Petitioner,

vs. Case No. 15 - 7253

BOARD OF NURSING,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

February 1 , 201 6 , at sites in Tallahassee and Port St. Lucie ,

Florida.

APPEARANCES

For Petitioner: Steph anie DeCelestino , pro se

1365 Southeast Floresta Drive

Port St. Lucie , Florida 3 4 9 83

For Respondent: Deborah Bartholow Loucks , Esquire

Lynette No r r, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSU ES

The issue s in this case are whether Petitioner, in response

to a question on the application for licensure as a practical

nurse, knowingly misrepresented a material fact by den ying prior

p articip at ion in an alcohol recovery program for treatment of

alcohol abuse, and, if so, whether Respondent has grounds to

deny Petitioner's application .

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated June 30 , 201 5 , Respondent

Board of Nursing notified Petitioner Stephanie DeCelestino that

it intended to deny her application for licensure as a practical

nurse . Respondent's decision was based on Ms. DeCelestino's

negative answer to a question on the application inquiring

whether the applicant had ever been enrolled in, required to

enter into, or participated in any drug or alcohol recovery

program or impaired practitioner program for treatment of drug

or alcohol a buse. Respondent accused Ms. DeCelestino of

answering falsely in an attempt to obtain a license by bribery,

misrepresentation, or deceit.

Ms. DeCelestino timely requested a formal hearing, and , on

December 1 8 , 201 5 , 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 took place as scheduled on February 1 , 201 6 ,

with both parties present. Ms. DeCelestino was the only

witness. Respondent's Exhib it 1 was received in evidence

without objection.

The final hearing transcript was filed on February 12 ,

2016. Proposed r ecommended o rders were due on February 22,

201 6, and e ach party timely filed one.

Unless otherwise indicated, citations to the official

statute law of the state of Florida refer to Florida Statutes

2015, except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were in effect at th e

time of the alleged wrongful acts.

FINDINGS OF FACT

1. On December 10, 2014, Petitioner Stephanie DeCelestino

(" DeCelestino ") submit ted an Initial A pplication for Licensure to

Respondent Board of Nursing (the "Board") . Because DeCelestino is

a l icensed p ractical n urse ("LPN") in another state, she applied

for a Florida LPN license by endorsement ( a process which allows

an applicant to avoid sitting for another examination). The Board

is responsible for reviewing such applications and determining

which should be certif ied for licensure to the Department of

Health ("Department") , and which denied .

2. Under the heading "Criminal History, " the application

which DeCelestino completed asked a single question: "Have you

EVER been convicted of, or ente red a plea of guilty, nolo

contendre, or no contest to, a crime in any jurisdiction other

than a minor traffic offense?" DeCelestino answered, "NO."

3. Under the heading "H ealth History," the application which

DeCelestino completed contained five questions, as follows:

In the last five years, have you been

enrolled in , required to enter into, or

participated in any drug or alcohol

recovery program or impaired

practitioner program for treatment of

drug or alcohol abuse that occurred

within the past five years?

In the last five years, have you been

admitted or referred to a hospital,

facility or impaired practitioner

program for treatment of a diagnosed

mental disorder or impairment?

During the last five years, have you been

treated for or had a recurrence of a

diagnosed mental disorder that has

impaired your ability to practice

nursing within the past five years?

In the last five years, were you admitted or

directed into a program for the

treatment of a diagnosed substance -

related (alcohol/dr ug) disorder or, if

you were previously in such a program,

did you suffer a relapse in the last

five years?

During the last five years, have you been

treated for or had a recurrence of a

diagnosed substance - related

(alcohol/drug) that has impaired your

ab ility to practice nursing within the

past five years?

DeCelestino answered "NO" to all five questions.

4. The Department orders a criminal background check on all

applicants. The results for DeCelestino suggested that she had an

undisclosed criminal h istory. Accordingly, by letter dated

December 23, 2014, the Department notified DeCelestino that her

application might contain false information and invited her to

"modify [her] response t o the criminal history question " and

provide "a typed self explanation of each charge " together with

"all available court dispositions" among other items.

5. DeCelestino complied. By letter dated February 7, 2015,

DeCelestino informed the Department (as she would later testify

credibly at hearing) that she had b een arrested in Tennessee on

February 14, 2014, for committing a crime after "consuming large

amounts of alcohol." For this offense, DeCelestino had been

sentenced, on April 22, 2014, to six months' probation on the

conditions that she "continue counselin g" and have no contact with

the victim. The mandatory "counseling" consisted of attending

Alcoholics Anonymous ("AA") meetings, which DeCelestino did from

April to September 2014. Later, DeCelestino voluntarily received

group counseling through ADAP Coun seling Services ("ADAP") in

Florida , which she completed on November 9, 2014 . DeCelestino

disclosed these facts to the Department in her February 7 , 2015,

correspondence, writing: "I attended AA meetings and a strict

counseling group here in Florida called Adap."

6. Together with her letter, DeCelestino furnished the

Department with a copy of the Order for the Expungement of

Criminal Offender Record dated November 20, 201 4 , by which the

Tennessee court having jurisdiction over her criminal offense had

dismissed the charge and ordered "that all PUBLIC RECORDS relating

to such offense . . . be expunged and immediately destroyed." She

also submitted an Appli cation Update on which she switched her

answer to "Yes" in response to the criminal history question.

7. The Board accepted DeCelestino's explanation of the

criminal charge and does not currently allege that she knowingly

misrepresented a material fact by denying the arrest in Tennessee,

given that the record thereof had been expunged.

8. On June 30 , 201 5 , however, the Board executed a Notice of

Intent to Deny DeCelestino's application for cert ification as a

practical nurse by endorsement , relying up on other grounds in

support of such proposed action . In the notice , the Board

alleged:

As part of a pretrial intervention agreement,

the applicant was required to attend

substance abuse counseling sessions. The

applicant was discharged from the sessions on

or about November 9, 2014.

The Board accused DeCelestino of having attempted to ob tain a

license by bribery, misrepresentation, or deceit when she denied ,

in response to the first health history question on the

application, having participated in an alcohol recovery program

for treatment of alcohol abuse that occurred within the past fi ve

years .

9. The Board's factual allegations are not entirely

accurate. The counseling provided by ADAP, which DeCelestino

completed on November 9, 2014, was not court ordered, but rather

involved services that DeCelestino sought on her own. There is no

evidence in the record persuasively establishing that these

services were provided as part of a "drug or alcohol recovery

program" for the purpose of treating "drug or alcohol abuse. " 1 /

Perhaps more important, there is no persuasive evidence supporting

a finding that DeCelestino knew that the ADAP counseling services

met these criteria, even assuming that they did, which to repeat

was not proven. The undersigned accepts as credible DeCelestino's

testimony that she did not interpret the health history q uestion

as an inquiry about such counseling as she received at ADAP.

10. As for her court ordered attendance at AA meetings,

which DeCelestino was "required to enter into," the undersigned

accepts as credible her testimony that she did not consider AA to

be an "alcohol recovery program . . . for treatment of drug or

alcohol abuse." There is , to explain, no evidence in the record

establishing the nature of AA meetings, and , although the

undersigned has a general idea of what AA does given that it is a

well - known organization with which most adults in the U.S. have at

least a passing familiarity through common experience and exposure

to the popular culture, it is not clear to the undersigned that AA

constitutes an "alcohol recovery program" within the meanin g of

the health history question. 2 / Because the question does not

unambiguously inquire about AA, DeCelestino's conclusion that

nondisclosure of her attendance at AA meetings was permissible is

arguably correct and at worst an honest mistake.

11. Based o n DeCelestino's credible testimony, which the

undersigned credits, it is found that DeCelestino had no

intention of deceiv ing the Board in hopes her attendance at AA

meetings or ADAP counseling sessions would not be discovered.

She readily disclosed th is information when asked for an

explanation of her criminal background , even though no issue had

been raised concerning her response to the health history

question. Had she intended to conceal her participation in an

"alcohol recovery program," DeCelestino surely would not have

mentioned AA or ADAP in her February 7, 2015, letter to the

Department because she could have responded truthfully to the

inquiry about her criminal charge without doing so . The order

sentencing her to probation , recall, required he r to "continue

counseling" b ut said nothing about attending an "alcohol

recovery program." The fact that she volunteered the

information while making no attempt to update her application to

conform thereto persuasively corroborates h er testimony that she

did not understand the health history question to be asking

about AA meetings or ADAP counseling.

D eterminations of Ultimate Fact

12 . DeCelestino is not gu ilty of attempting to procure an

LPN license by knowing misrepresentation s , which is a

disciplinable offense and grounds for denial of licensure under

section 464. 018 (1)(a) , Florida Statutes .

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 1 20.569 and 120.57(1), Florida Statutes .

14 . As the applicant for licensure, DeCelestino 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.

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

particularity the reasons for de nying DeCelestino's

a pplication . § 120.60(3) , Fla. Stat. This i t did in the

Notice of Intent to Deny. The Board bears the burden of

proving these allegations of wrongdoing on DeCelestino'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 speci fic 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 be licensed."); Dep't of Banking & Fin., Div. of

Sec. & Inv. Prot. v. Osborne Stern & Co . , 6 70 So. 2d 932, 934 -

935 (Fla. 1996) .

16 . 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) 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

violating any provision of s. 456.072(1).

See also § 456.072(1)(h), Fla. Stat . ( making it an offense to

attempt " to obtain, obtain [], or renew [] a license to practice a

profession by bribery, by fraudulent misrepresentation, or

through an error of the department or the board").

1 7 . As discussed above, the undersigned determined, based

upon a preponderance of the evidence, that DeCelestino did not

commit the offense d efined in section s 464.018 (1)(a) and

456.072(1)(h) , Florida Statutes, as charged in the Notice of

Intent to Deny. Due to this dispositive finding of fact , it is

not necessary to render additional conclusions of law.

18. The question of whether DeCelestino might be impaired

as a result of alcohol use or abuse was not presented in this

case, although the Board insinuates that DeCelestino could pose

a threat to patients if licensed as a practical nurse. Without

expressing an opinion regarding the possibility that DeCelestino

is impaired, the undersigned notes that s ection 456.076 provides

in relevant part as follows:

(3) Each board and profession within the

Division of Medical Qual ity Assurance may

delegate to its chair or other designee its

authority to determine, before certifying or

declining to certify an application for

licensure to the department, that an

applicant for licensure under its

jurisdiction may be impaired as a resu lt of

the misuse or abuse of alcohol or drugs, or

both, or due to a mental or physical

condition that could affect the applicant's

ability to practice with skill and safety.

Upon such determination, the chair or other

designee may refer the applicant to t he

[impaired practitioner] consultant for an

evaluation before the board certifies or

declines to certify his or her application

to the department. If the applicant agrees

to be evaluated by the consultant, the

department's deadline for approving or

denyi ng the application pursuant to s.

120.60(1) is tolled until the evaluation is

completed and the result of the evaluation

and recommendation by the consultant is

communicated to the board by the consultant.

If the applicant declines to be evaluated by

the consultant, the board shall certify or

decline to certify the applicant's

application to the department

notwithstanding the lack of an evaluation

and recommendation by the consultant.

19. Nothing in this Recommended Order is intended either

to facilitat e or frustrate the formulation of a determination

concerning DeCelestino's possible impairment for purposes of a

referral to the consultant pursuant to section 456.076(3). If

the Board makes such a referral, however, and the Board

thereafter declines to certify DeCelestino's application based

on the consultant's recommendation (or DeCelestino's refusal to

be evaluated) , DeCelestino must be given another clear point of

entry into a formal administrative hearing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order approving DeCelestino's application for licensure by

endorsement as a practical nurse unless it determines that she

might be imp aired as a result of alcohol abuse, in which case a

referral should be made pursuant to section 456.076(3) with

further proceedings to follow in accordance therewith .

DONE AND ENTERED this 2 9 th day of March , 20 1 6 , 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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of March , 20 1 6 .

ENDNOTES

1 / The Board argues in its Proposed Recommended Order, without

adequate (if any ) evidential support in the record, that "ADAP is

a substance abuse counseling center." ADAP's web site provides as

follows:

ADAP Counseling Services' Substance Abuse

Program is a therapeutic approach to

addressing an individual's physical,

psychological, emotional, and social

needs. In addition to stopping drug use, our

primary goal is to provide the tools to

function effectively in the community.

ADAP Counseling Services, Substance Abuse Treatment , http://tes -

fl.com/services/substanceabuse.html (last visited Mar. 25, 2016).

The undersigned is not making any findings of fact based upon this

statement, which is not in the record, but simply notes that, as

the statement indicates, it cannot reasonably be inferred or

assumed that all counseling having som e connection to the client's

alcohol consumption is part of an "alcohol recovery program . . .

for treatment of drug or alcohol use." There is, moreover,

insufficient evidence in the record to determine whether

DeCelestino actually has or had a treatable disease relating to

alcohol abuse, e.g., alcohol use disorder or alcoholism, or

whether her drinking was secondary to some other treatable

condition, e.g., depression, for which counseling might have been

sought.

2 / The Board argues in its Proposed Reco mmended Order, without

any support in the record, that AA "is a well - known alcohol

recovery program." Here is how AA describes itself:

Alcoholics Anonymous is an international

fellowship of men and women who have had a

drinking problem. It is nonprofes sional,

self - supporting, multiracial, apolitical,

and available almost everywhere. There are

no age or education requirements.

Membership is open to anyone who wants to do

something about his or her drinking problem.

Alcoholics Anonymous ® , What is A.A. ? , http://www.aa.org/

pages/en_US/what - is - aa (last visited Mar. 25, 2016). The

undersigned makes no findings based on this description, which

is not in the record, but observes that, as the statement

suggests, AA is not merely, or arguably even necessaril y, an

"alcohol recovery program . . . for treatment of drug or alcohol

abuse."

COPIES FURNISHED:

Stephanie DeCelestino

1365 Southeast Floresta Drive

Port St. Lucie, Florida 34983

(eServed)

Deborah Bartholow Loucks, Esquire

Lynette No r r, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Nichole C. Geary , General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Joe Baker, Jr., Executi ve Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 3252

(eServed)

Ann - Lynn Denker , PhD , A RN P , Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C02

Tallahassee, Florida 32399 - 3252

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.