15-007254 Latrice J. Walker vs. Board Of Nursing Status: Closed Recommended Order on Wednesday, March 16, 2016.

Summary: Petitioner proved entitlement to approval of her certification as a nursing assistant, but probation should temporarily be imposed.

STATE OF FLORIDA

D EPARTMENT OF CHILDREN AND FAMILY SERVI C ES

LATRTICE J. WALKER ,

Petitioner ,

vs. Case No. 15 - 7254

BOARD OF NURSING ,

Respondent .

RECOMMENDED ORDER

Pursuant to notice to all parties, a f inal hearing was

conducted in this case on February 8 , 2016 , in Tallahassee ,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings. The parties were

represented as set forth below.

APPEARANCES

For Petiti oner: Latrice J. Walker, pro se

454 Southwest 10th Circle

Chiefland, Florida 32626

For Respondent: Deborah Bartholow Loucks, Esquire

Lynette Norr, Esquire

Office of the Attorney General

The Capitol, Plaza Level 0 1

Tall ahassee, Florida 323 99 - 1050

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Latrice J.

WalkerÓs application for certification as a certified nursing

assistant should be granted .

PRELIMINARY STATEMENT

On June 30, 2015 , Respondent , Dep artment of Health, Board

of Nursing (the Ð Board Ñ) , notified Petitioner that her

application for certification as a certified nursing assistant

by examination was denied. The basis of the denial was that

Petitioner had answered ÐNoÑ to questions concerning whether she

had any criminal convictions . Petitioner timely requested an

administrative hearing to contest the Board Ós contention that

her application for certification should be denied .

At the final hearing, Petitioner testified on her own

behalf. Sh e did not present any other witnesses and offered no

exhibits into evidence for consideration. The Board did not

call any witnesses other than Petitioner but offered one

composite exhibit into evidence , which was admitted.

A Transcript of the final hear ing was ordered; it was filed

at the Division of Administrative Hearings on March 1, 2016. By

rule, parties were allowed ten days to submit proposed

recommended orders. Petitioner submitted a written document on

March 3 , 2016, which was accepted as her P roposed Recommended

Order; the Board submitted a Proposed Recommended Order on

March 9, 2016. E ach partyÓs submission was duly considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 31 - year old woman . She is cur rently

employed as a key - holder at ChurchÓs Chicken, where she is a de

facto assistant manager. Her duties include handling customersÓ

credit cards and cash, as well as making drop deposits at a

local bank.

2. On or about March 4, 2013, Petitioner comple ted and

submitted a Florida Certified Nursing Assistant Application.

The application was received by the Board on March 12, 2013. On

page 4 of the application, there is a section entitled ÐCriminal

History.Ñ Th at section asks of the applicant :

Ð Have y ou ever been convicted of, or entered

a plea of guilty, nolo contender, 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. Driving under

the influence (DUI ) , driving while impaired

(DWI) and driving while license suspended

(DWLS) are not minor traffic offenses for the

purposes of this question. Ñ

3. Petitioner answered, ÐNoÑ , to the criminal history

question. In fact, she had three relevan t arrests on her

record, to wit: 1) In January 2003, Petition e r was arrested and

charged with a violation of section 832.05(2 ) , Florida Statutes

(2002), relating t o the issuance of a bad check; 2) i n April of

the same year, Petitioner was arrested and cha rged with

violation of section 812.014 (3) ( a ) , Florida Statutes (2002),

relating to petit larceny, and section 831.09 , Florida Statutes

(2002) , relating to passing a forged instrument; and 3) on

August 8, 2004, Petitioner was arrested and charged with leavi ng

the scene of an accident in violation of section 316.061(1),

Florida Statutes (200 4), and possession of less than 20 grams of

marijuana, a violation of section 893.13(6) (2004) . Petitioner

entered a plea on the 2002 charges and adjudication was

withhel d. She was found guilty of the 2004 charges.

4. Petitioner provided two reasons for answer ing , ÐNoÑ , to

the criminal history question : First, she believed that because

adjudication had been withheld she did not need to disclose the

arrest s . Second, s he was holding her six month - old child while

preparing the application and may have hit the wrong box on the

application form . The testimony concerning her child affecting

her typing of the application was not persuasive. Whatever the

reason for her resp onse on the application , it is clear

Petitioner did not try to hide her criminal past. As early as

October 2013 , she had requested from the Levy County Clerk of

Court information about her convictions so that she could

provide th at information to the Boar d.

5. On February 24, 2014, almost one year after submitting

her application , the Board sent Petitioner a letter indicating

her application was not complete. The letter advised Petitioner

that incomplete applications would expire after one year from

th e Ðreceived date.Ñ The letter then identified information

that was missing from PetitionerÓs application, including the

following items :

1) Proof of completion of probation or

parole;

2) Proof of completion of fines,

restitution, or court - ordered sanct ions for

each offense ;

3) Certificates, counselor letters, and

proof of treatment or rehabilitation;

4) Proof of completion of community service;

and

5 ) P roof of completion of pre - trial

intervention .

6. It is clear from the BoardÓs letter to Petiti oner that

the Board w as aware of her criminal convictions as the omissions

letter had asked for explanations as to completion of sanctions

for each offense.

7. P etitioner went to the Levy County Courthouse and

obtained the requested information. She prov ided th e

information to the Board as requested. On March 4, 2014, the

Board notified Petitioner that additional explanations about

each of the offenses were required. Again, Petitioner provided

the requested information.

8. On or about June 30, 2015, t h e Board notified

Petitioner that her application for certification was being

denied. No one from the Board testified concerning the basis

for the denial, but the Notice of Intent to Deny set out the

following bases for the denial :

That Petitioner was conv icted of or entered

pleas to a charge of no driverÓs license in

2000, worthless checks, petit theft and

uttering a for ged instrument in 2003, and

leaving the scene, resisting arrest,

possession of marijuana and petit theft in

2004.

The application inclu des the following

question: Have you ever been convicted of,

or entered a plea of guilty, nolo contender,

or no contest to, a crime in any jurisdiction

other than a minor traffic offense? You must

include all misdemeanors and felonies, even

if adjudicati on was withheld. Driving under

the influence (DUI, driving while impaired

(DWI) and driving while license suspended

(DWLS) are not minor traffic offenses for the

purposes of this question .

The applicant answered the question , Ð NO Ñ .

The applicant is in v iolation of Sections

464.204(1)(a), 464.018(1)(a)(c ) and (o), and

456.072(1)(c) and (h), Florida Statutes, by

being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which direct ly relates to the

practice of nursing assistance or to the

ability to practice nursing, and by

attempting to obtain a nursing license by

bribery, misrepresentation or deceit.

9. No further explanation for denial of PetitionerÓs

application for certificat ion was stated in the Notice of Intent

to Deny or by way of testimony or other evidence at final

hearing in this matter . However, one may surmise that the basis

for the BoardÓs denial of the application was: 1) t hat

Petitioner had been found guilty or pl ed nolo contendere to the

enumerated crimes, and 2) t hat Petitioner attempted to mislead

the Board in her application for certification.

10. Petitioner provided evidence as to each of the issues

raised in the BoardÓs Notice of Intent to Deny. Although her

memory was clouded as to specifics about each of the incidents

due to the passage of time, she admitted each offense and tried

to explain the circumstances surrounding them.

11. As to the charges of leaving the scene of the

accident, resisting arres t without violence and possession of

marijuana, Petitioner explained as follows: She was helping her

sister move to a new home. Petitioner was driving the rental

vehicle and hit a car in the parking lot of a business. She

drove away from the scene. Whe n the police came to her home ,

Petitioner went into her house. At some point marijuana was

found, but Petitioner - Î who says she has never done drugs Î -

claimed it to be her sisterÓs drugs . Petitioner was arrested.

However, she satisfied all of the conditi ons of probation and

made all payments for costs.

12. As to the insufficient funds charge, Petitioner stated

that at the time she wrote the check to pay rent for the mobile

home she was living in, she had funds in the bank. However, by

the time the che ck was submitted for payment, she had used the

existing funds. She admitted the violation and made all

payments of restitution and costs.

13. The uttering offense came when she agreed to sign a

money order that did not belong to her. She yielded to the

influence of nefarious friends with whom she no longer

associates. Again, she admitted her culpability and made all

necess ary restitution to the victim.

14. Petitioner filed her application for certification as

a nursing assistant to fulfill a long - ti me dream of working in

health care . She has Ðchanged her waysÑ and is very desirous of

doing positive things in her life. PetitionerÓs demeanor and

candor at final heari ng ga ve credence to her promise to do

better in the future , if given the opportunity. Her testimony

was persuasive . However, it is troublesome that Petitioner

chose to blame her application errors on the fact that she was

holding her child while typing the application. That ÐexcuseÑ

does not ring true and seems an unnecessary reason for not

disclosing the crimes.

15. Nonetheless, a bsent further elucidation by the Board

as to exactly why PetitionerÓ s application was denied, there is

no way for Petitioner to further support her challenge to the

denial other than as she did at final hear ing . The Board did

not challenge her reasons; it merely stood by its denial letter

without further support or justification.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of t his

proceeding pursuant to s ection s 120.569 and 120.57(1), Florida

Statutes. Unless specifically stated otherwise herein, all

references to Florida Statutes will be to the 2015 version.

17. The general rule is that the party asserting the

affirmative of an issue has the burden of presenting evidence as

to that issue. DepÓt of Banking & Fin., Div. of Sec. & Investor

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 (Fla. 1996),

citing Fla. DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla.

1 st DCA 1981) . In the instant matter, Petitioner had the burden

of proving, by a preponderance of evidence, that her application

for certification should be approved. See Espinoza v. DepÓt of

Bus. and ProfÓl Reg. , 739 So. 2d 1250 (Fla. 3 rd DCA 1999).

18. Section 46 4.203, Florida Statutes, sets forth the

requirements for certification as a certified nursing assistant.

Section 464.203(1) requires an applicant to demonstrate a

minimum competency to read and write, successfully pass the

background screening conducted p ursuant to section 415.215,

and meet one of the requirements set out in section

464.203(1)(a ) - (d).

19. Section 464.204(1) sets forth the acts that constitute

grounds for denial of certification. The grounds for denial

are:

(a) Obtaining or attempti ng to obtain

certification or an exemption, or possessing

or attempting to possess certification or a

letter of exemption, by bribery,

misrepresentation, dec eit, or through an

error of the Board.

(b) Intentionally violating any provision

of this chapter, chapter 456, or rules

adopted by the Board.

20. Petitioner did not violate this provision. Her

failure to properly answer the question on the application was

not done for the purpose of misleading or deceiving the Board.

21. Section 464.018(1)(c) pr ovides that being convicted or

found guilty of, or entering a plea of nolo contendere to,

regardless of adjudication, a crime in any jurisdiction which

directly relates to the practice or the ability to practice

nursing constitutes grounds for denial of ce rtification. The

same is true as to any licenseeÓs profession. See

§ 456.072(1)(c) , Fla. Stat .

22. Section 456.072 (1) states that the acts constituting

grounds for denial may result in disciplinary action or other

sanctions . Subsection (2) of that stat ute lists the penalties

that may be imposed, including : refusal to certify, certifying

with restrictions on the personÓs practice, fines, letters of

reprimand, probation and others.

23. A bsent any more specific reason for the BoardÓs denial

of her appl ication, Petitioner appears to have met her burden of

proving entitlement to her certification as a nursing assistant .

She explained the reasons for her actions, expressed her remorse

and sorrow for those actions, and clearly showed that she had no

intent ion of defrauding or misleading the Board in her

application.

24. However, even if a sanction or penalty was to be

imposed, the denial of her application would not be consistent

with the evidence. At worst, Petitioner should be penalized by

way of a shor t probationary period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Department of Health, Board of Nursing , granting Petitioner,

Latrice J. WalkerÓs , applica tion for certification as a

certified nursing assistant , with appropriate sanctions .

DONE AND ENTE RED this 1 6 th day of March, 2016 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 1 6 th day of March , 2016 .

COPIES FURNISHED:

Latrice J. Walker

454 Southwest 10th Circle

Chiefland, Florida 32626

Deborah B . Loucks, Esquire

Lynette Norr, Esquire

Office of the Attorney General

The Capitol , Plaza Level 0 1

Tallahassee, Florida 32399 - 1050

(eServed)

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 Bald Cypress Way, Bin C02

Ta llahassee, Florida 32399 - 3252

Nichole C. Geary, General Counsel

D epartment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(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.