15-007255 Tara Danielle Walker vs. Board Of Nursing Status: Closed Recommended Order on Tuesday, March 8, 2016.

Summary: Petitioner failed to disclose a reprimand from another state when applying for licensure by endorsement. Action was negligent as opposed to intentional. Recommend application for license be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TARA DANIELLE WALKER,

Petitioner,

vs. Case No. 15 - 7255

BOARD OF NURSING,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge Lisa Shearer Nel son of the Florida

Division of Administrative Hearings conducted a duly - noticed

disputed fact hearing on February 8, 2016, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Tara Danielle Walker, pro se

146 Smoky Crossing Way

Seymour, Tenness ee 37865

For Respondent: Lynette Norr, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue to be determined is whether PetitionerÓs

application for licensure by endo rsement as a licensed practical

nurse in the State of Florida should be granted or denied.

PRELIMINARY STATEMENT

Petitioner, Tara Danielle Walker, applied for a Florida

license as a practical nurse. On July 1, 2015, Respondent, the

Florida Board of Nursi ng, issued a Notice of Intent to Deny

based upon PetitionerÓs negative answer to the question, ÐHave

you ever had disciplinary action taken against your lic ense to

practice any healthcare - related profession by the licensing

authority in Florida , or in any o ther state, jurisdiction or

country?Ñ The BoardÓs Notice indicates that PetitionerÓs answer

to this question was false inasmuch as her license was

repri manded by Consent Order in the S tate of Virginia.

Petitioner requested a hearing and the case was for warded

to the Division of Administrative Hearings for the assignment of

an administrative law judge on December 18, 2015. By notice

issued December 3, 2015, the hea ring was scheduled for

February 8, 2016, and commenced as scheduled. At hearing, in

order to pro vide structure to the proceedings without changing

the burden of proof, Respondent presented its case first, and

presented the testimony of Petitioner and William E. Spooner.

RespondentÓs Composite Exhibit A, consisting of PetitionerÓs

application f ile, was admitted into evidence. Petitioner

presented the testimony of Jill Smith and PetitionerÓs Exhibits

1 and 2 were admitted into evidence.

The Transcript of the proceedings was filed with the

Division on February 18, 2016. Respondent submitted its

Proposed Recommended Order on February 26, 2016, and Petitioner

submitted her Proposed Recommended Order on February 29, 2016.

Both submissions have been carefully considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. Petitioner w as licensed as a practical nurse by

e xamination in the S tate of Ohio, having received her license in

Ohio in August of 1994. She practiced in Ohio, generally in

long - term care settings, from 1994 to approximately 2009. She

was subsequently licensed by en dorsem ent in Virginia on

March 17 , 20 09, and in North Carolina on May 18, 2011.

2. On February 23, 2011, Petitioner received a reprimand

against her license in the State of Virginia. The reprima nd was

issued as a result of a Consent O rder in which Petit ioner

neither admitted nor denied the findings of fact in the Virginia

Board of NursingÓs Final Order.

3. Petitioner applied for licensure in North Carolina a

few months after the entry of the Virginia Final Order. Her

testimony that she disclosed the re primand in her application

for licensure in North Carolina is undisputed and accepted. The

application submitted in North Carolina was a paper application.

4. On or about April 27, 2015, Petitioner submitted an

electronic application for licensure by end orsement in Florida.

The application contains the following question, which

Petitioner answered ÐnoÑ:

Have you ever had disciplinary action taken

against your license to practice a health

care - related profession by the licensing

authority in Florida, or a ny other state,

jurisdiction or country?

5. In submitting her application, Petitioner also checked

an Affirmation Statement, which inc ludes the following

statement:

I, the undersigned, state that I am the

person referred to in this application for

licen sure in the State of Florida. I affirm

these statements are true and correct and

recognize that providing false information

may result in disciplinary action against my

license or criminal penalties pursuant to

Sec tions 456.067, 775.083, and 775 .084,

Flor ida Statutes.

I have carefully read the questions in the

foregoing application and have answered them

completely, without reservations of any

kind, and I declare under penalty of perjury

that my answers and all statements made by

me herein are true and co rrect. Should I

furnish any false information in this

application I hereby agree that such act

shall constitute cause for denial,

suspension or revocation of my license to

practice as a Registered Nurse or a Licensed

Practical Nurse in the State of Florid a.

6. Petitioner did not complete her on - line application in

one sitting. She filled it out over several sessions on the

computer, because she had to complete the continuing education

required for Florida and had to wait for funds to pay the

applicatio n fee. Because of the way she completed the

application, she did not check her application as carefully as

she should have and did not realize that she had answered the

question regarding discipline in another state incorrectly.

7. Petitioner had noti fied North Carolina of her previous

discipline when applying in that state. There was no basis

presented to indicate that she was affirmatively attempting to

conceal her prior discipline, as opposed to being negligent in

the completion of her application.

8. Petitioner did not realize the error on her application

until she inquired about the status of her application after the

Board considered it at its June 2015 meeting. After her

inquiry , but before receiving th e Notice of Intent to Deny,

Ms. Walker w rote to the Executive Director of the Board to

inquire what she needed to do to correct her error, stating, Ðit

was an honest mistake of marking the wrong box on the question.

I had started and stopped the application several times while

gathering all of the information needed.Ñ She provided

information regarding the Virginia discipline, and a printout of

the documents on file with the Virginia Board of Nursing with

respect to the reprimand.

9. Petitioner has been a nurse for over 22 years. She

loves h er job. She was candid and forthright in acknowledging

that it was her error and no one elseÓs with respect to the

answers given on the application. While Petitioner clearly

needed to be more careful in preparing her application, no

deliberate attempt to deceive was demonstrated.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2015).

11. Ms. Walker is an applicant for licensure as a licensed

practical nurse in the State of Florida. As an applicant for

licensure, she bears the burden of proof by a preponderance of

the e vidence to demonstrate that her application should be

approved. DepÓt of Banking & Fin. v. Osborne Stern and Co. ,

760 So. 2d 932 (Fla. 1996); Espinoza v. DepÓt of Bus. and ProfÓ l

Reg. , 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999); Balino v. DepÓt

of Health & Rehab. Servs. , 348 So. 2d 349 (Fla. 1st DCA

1977)(burden of proof is on the party assert ing the affirmative

of an issue before an administrative tribunal).

12. The burden of proof that Petitioner must meet is the

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

standard requires proof by the greater weight of the evidence,

o r evidence that more likely than not tends to prove the premise

at issue. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

13. The Notice of Intent to Deny stated that the Board

voted to deny PetitionerÓs application based upon alleged

violations of sections 464.018(1)(a) and (b), and section

456.072(1)(f) and (h), Florida Statutes.

14. Section 464.01 8 (1) 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.

(b) Having a license to practice nursing

revoked, suspended, or otherwise acted

against, including the denial of licensure,

by the licensing authority of another state,

territory, or country.

15. Similarly, section 456. 072(1)(f) and (h) provide:

456.072 Grounds for discipline; penalties;

enforcement. Ï

(1) The following ac ts 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 denia l 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 anticipation 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.

16 . It is clear that, should the Board so choose, it has a

basis to deny Pe titionerÓs license based on the action in

Virginia. A reprimand issued by the Virginia Board of Nursing,

even where the licensee neither admits nor denies the basis for

the action, constitutes action against PetitionerÓs license by

another licensing juris diction in violation of sections

456.072(1)(f) and 464.018(1)(b). The action taken, however, was

a reprimand, with no restriction on her practice.

17 . The more difficult question is whether PetitionerÓs

failure to disclose the Virginia reprimand consti tutes an

attempt to obtain a license by fraudulent misrepresentation.

The undersigned concludes that it does not.

18 . A n allegation of fraudulent misrepresentation requires

pro of that the misrepresentation is intentional. Walker v.

DepÓt of Bus. & ProfÓ l Reg. , 705 So. 2d 652 (Fla. 5th DCA 1998);

Godwin v. DepÓt of ProfÓl Reg. , 461 So. 2d 226, 228 (Fl a . 1st

DCA 1984). Here, the more compelling evidence is that

Petitioner did not carefully check her application before

sending it, and was negligent in doin g so. Respondent did not

establish that her actions were intentional as opposed to a

negligent mistake. When she discovered the error, she

immediately sent copies of the Virginia Order to the Board,

albeit after the Board had considered her application.

Petitioner was candid at hearing in stating that she should have

answered the question about disciplinary history differently,

and took responsibility for her error. While Petitioner should

have been more careful, neither the discipline imposed by

Virgin ia nor her admitted mistake here should result in the

denial of her license as a licensed practical nurse.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

final orde r granting PetitionerÓs application for licensure by

endorsement as a licensed practical nurse.

DONE AND ENTERED this 8th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 8th day of March , 2016 .

COPIES FURNISHED:

Tara Danielle Walker

146 Smoky Crossing Way

Seymour, Tennessee 37865

(eServed)

Lynette Norr, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(e Served)

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, B in C02

Tallahassee, Florida 32399 - 3252

Nichole C. Geary, 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 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.