15-007256 Stephaney Christie vs. Board Of Nursing Status: Closed Recommended Order on Tuesday, May 3, 2016.

Summary: In her application for licensure as a certified nursing assistant, Petitioner did not intentionally deny the fact that she had been convicted of crimes. Respondent should approve her application to take the competency examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHANEY CHRISTIE,

Petitioner,

vs. Case No. 15 - 7256

BOARD OF NURSING,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Ju dge Mary Li

Creasy for final hearing by video teleconference on March 1,

2016 , at sites in Tallahassee and West Palm Beach , Florida.

APPEARANCES

For Petitioner: Stephaney Christie, pro se

Apartment No. 301

4759 Via Palm Lakes

West Palm Beach, Florida 334 17

For Respondent: Deborah Bartholow Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether Petitioner should be denie d certification as a

certified nursing assistant for failure to disclose prior

criminal history on her application , as alleged in the Notice of

Intent to Deny.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated June 30, 2015 , Respondent

Board of Nurs ing notified Petitioner Stephaney Christie that it

intended to deny her application for licensure as a certified

nursing assistant. Respondent ' s decision was based on

Ms. Christie ' s negative answer to a question on the application

inquiring whether the ap plicant had ever been convicted of a

crime, which Ms. Christie in fact had been. Respondent accused

Ms. Christie of attempting to obtain a license by bribery,

misrepresentation, or deceit.

Ms. Christie timely requested a formal hearing, and on

December 18 , 2015 , Respondent referred the matter to the Division

of Administrative Hearings, where an Administrative Law Judge was

assigned to conduct a formal hearing.

The hearing took place as scheduled on March 1 , 201 6 , with

both parties present. Ms. Christie w as the only witness.

Respondent ' s Exhibit 1 was received in evidence without

objection.

The final hearing transcript was filed on March 22, 2016.

Respondent timely filed a proposed recommended o rder , which was

considered in the preparation of this Rec ommended Order .

Unless otherwise indicated, citations to the Florida

Statutes refer to the 20 15 Florida Statutes.

FINDING S OF FACT

1. Petitioner Stephan e y Christie ( " Christie " ) wants to

become a certified nursing assistant ( " CNA " ). Because she is n ot

currently certified in another state, to accomplish this goal ,

Christie must submit an application for certification by

examination to Respondent Board of Nursing (the " Board " ). The

Board is responsible for reviewing such applications and

determining w hether applicants are eligible to take the nursing

assistant competency examination, which consists of a written

test and a skills - demonstration test. Successful completion of

both portions is necessary to obtain a CNA license by

examination.

2. On October 31, 2014 , Petitioner filed an application ,

again seeking to be certified as a CNA by examination.

3. T he application included a question which sought

information about the applicant ' s criminal convictions, if any.

It provided as follows:

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? . . . *If you

answered YES, please be prepared to create a

typed or printed letter with arrest dates,

city, state, charges and final dispositions

and be prepared to send it to the Board

Office upon request. (Do not send this

information with your application for

examination.)

4. Christie ' s application erroneously indicated " N o " in

response to this question.

5. In 1999 , C hristie was involved in a neighborhood

altercation to which law enforcement was called. Christie pulled

away when an officer attempted to touch her arm . She was found

guilty of a misdemeanor charge of obstructing an officer without

violence. She received and completed a sentence of community

service.

6. In 2000, C hristie left her young child in the care of a

neighbor. When Christie returned home, she found her child had a

black eye . She became involved in a heated discussion with the

caregiver and as the argument escalated, threw a glass at the

caregiver , which cut the caregiver ' s face. As a result of this

altercation, Christie was charged with aggravated battery with a

deadly weapon causing great bodily harm to w hich she pled guilty,

and adjudication was withheld. Christie successfully co mpleted a

three - year probationary sentence and paid restitution to cover

the victim ' s medical costs.

7 . On January 27, 2015, Respondent notified Christie that

her applicati on was incomplete pending Respondent ' s receipt of

information regarding judicial disposition of her arrests,

sentence completion status for each offense, and a typewritten

explanation addressing each offense.

8 . On February 23, 2015, Christie provid ed the requested

information, including a lengthy explanation of the circumstances

surrounding each of her criminal offenses. At that time,

Christie also provided character letters, including one from

Assisting Hands home health care entity attesting to C hristie ' s

d iligence and compassion in performing her job - related duties

with its clients .

9 . On June 30, 2015, Respondent issued the Notice of Intent

to Deny ( " Notice " ) Petitioner ' s application for certification as

a CNA by examination. The Notice e xplained Christie ' s

application was being denied due to her " attempting to obtain a

nursing license by bribery, misrepresentation, or deceit, " b y

having incorrectly answered " N o " to an application question .

10 . At the hearing, Christie testified that the incorrect

answer regarding previous misdemeanors and felonies was a

mistake. She explained that her application was prepared by

personnel running the CNA training program from which she had

taken classes to prepare for the CNA certification examinati on.

Training personnel filled out and submitted the computerized

application form on Christie ' s behalf without verifying with

Christie the accuracy of the information or showing the

application to Christie . In fact, Christie did not see the

application u ntil she wa s provided a copy by Respondent when

notified her application was incomplete.

11. Christie credibly testified that she had no intention

of hiding her past criminal record. She was aware that any

background check required to obtain a profe ssional license would

reveal her prior charges and disposition.

12 . No evidence was presented by Respondent correlating the

crimes committed by Christie more than 15 years ago to the

practice or ability to practice the profession of a CNA .

Determinat ions of Ultimate Fact

13 . Christie is not guilty of attempting to procure a

CNA license by misrepresentation or deceit, which is a

disciplinable offense and grounds for denial of licensure under

section 464.204(1)(a), Florida Statutes.

14. Chri stie was not previously found guilty of a crime

related to the practice , or ability to practice, the profession

of a CNA .

CONCLUSIONS OF LAW

15 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursu ant to

sections 120.569 and 120.57(1), Florida Statutes.

16. As the applicant for licensure, Christie bears the

ultimate burden of proving by a preponderance of the evidence

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

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

§ 120.57(1)(j), Fla. Stat.

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

particularity the reasons for denying Christie ' s application,

section 120.60(3), which it did in the Notice. The Board bears

the burde n of proving these allegations of wrongdoing on

Christie ' 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

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. , 670 So.

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

18. Section 464.204 provides in pertinent part as follows:

(1) The following acts constitute grounds

for which the board may impose disciplinary

sanctions as specified in subsection (2):

(a) Obtaining or attempting to obtain

certification or an exemption, or possessing

or attempting to possess certification or a

letter of exemption, by bribery,

misrepresentation, deceit, or through an

error of the board.

* * *

(2) When the board finds any person guilty

of any of the grounds set forth i n subsection

(1), it may enter an order imposing one or

more of the following penalties:

(a) Denial, suspension, or revocation of

certification.

See also § 456.072(1)(h), Fla. Stat.

19. As discussed above, it is concluded that Petitioner did

not at tempt to obtain a CNA license by bribery, knowing

misrepresentations, or deceit. See Walker v. Dep ' t of Bus. &

Prof Ól Reg. , 705 So. 2d 652 (Fla. 5th DCA 1998)(intent to

misrepresent is required for showing of violation of statute on

basis of " misrepresent ation, " which, in turn, requires a showing

of knowledge). See also Miller v. B d . of Nursing , Case No. 14 -

0877 (Fla. DOAH June 30, 2014; Fla. Bd. of Nursing Sept. 5,

2014); Pratt v. Bd. of Nursing , Case No. 13 - 2417 (Fla. DOAH

Oct. 22, 2013; Fla. Bd. of Nu rsing Dec. 19, 2013); Fenelon v. Bd.

of Nursing , Case No. 12 - 3553 (Fla. DOAH Mar. 25, 2013; Fla. Bd.

of Nursing Oct. 22, 2013).

20. The Notice also charged Christie with violating

section s 4 64.018(1)(a) , (c) , and (o) of the " Nurse Practice Act, "

the statutory provision regulating the " practice of nursing. "

However, noticeably absent from the Notice was any reference to

section 464.204(1)(b), the statutory provision governing CNAs

that would make the N urs e Practice Act provisions also

applicable. Accordingly, no violation of 464.018 is

demonstrated.

21. Even assuming arguendo that section 464.018 was

properly charged, Respondent presented no evidence and cited no

authority correlating Christie ' s prior criminal record to the

practice of nursi ng or the ability to practice nursing.

Similarly, Respondent failed to demonstrate by a preponderance of

the evidence that Christie violated the general provision

regulating professions contained in section 456.072 (a) (c)

prohibiting being convicted or fou nd guilty or entering a plea of

guilty to the practice of or ability to practice the " licensee ' s

profession. "

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Department of Health,

Board of Nursing, enter a final order granting Petitioner ' s

application for certification as a CNA by examination.

DONE AND ENTERED this 3rd day of May , 2016 , in Tallahassee,

Leon County, Florida.

S

MARY LI CREASY

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 3r d day of May , 2016 .

COPIES FURNISHED:

Stephaney Christie

Apartment No. 301

4759 Via Palm Lakes

West Palm Beach, Florida 33417

Deborah Bartholow Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 10 50

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C02

Tallahassee, Florida 32399 - 3252

(eServed)

Jody Bryant Newman, EdD, EdS , Board Chair

Board of Nursing

Department of Health

4052 Bald Cypr ess Way , Bin C02

Tallahassee, Florida 32399

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 wri tten 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.