21-000384 Manuel Fernandez vs. Board Of Nursing Status: Closed Recommended Order on Friday, July 9, 2021.

Summary: Pet. failed to prove entitlement to applied-for RN license. His RN license was permanently revoked by the Board in 2014 for unprofessional conduct and violating nursing standards, and had prior conviction for felony aggravated assault with deadly weapon.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ANUEL F ERNANDEZ ,

Petitioner ,

vs. Case No. 21 - 0384

B OARD OF N URSING ,

Respondent .

/

R ECOMMENDED O RDER

A disputed - f act evidentiary hearing was held by Zoom video conference on

May 4, 2021, before Administrative Law Judge Elizabeth W. McArthur of the

Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioner: Lawrence E. Besser, Esquire

Samek and Besser , P.A.

1 200 Brickell Avenue , Suite 1950

Miami, Florida 33131

For Respondent: De borah B. Loucks, Esquire

Marlene Katherine Stern, Esquire

Office of the Attorney General

The Ca pitol, Plaza Level 01

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

The issue in this case is whether Petitioner's application for multistate

registered nurse licensure by endorsement should be denied for the reasons

gi ven by Respondent in its Notice of Intent to Deny, or whether Petitioner

met his ultimate burden of persuasion that h is application should be

approved .

P RELIMINARY S TATEMENT

By Notice of Intent to Deny issued January 4, 2021, the Board of Nursing

(Responde nt or Board) informed Manuel Fernandez (Petitioner or

Mr. Fernandez) of its intent to deny the application by Mr. Fernandez for

multistate registered nurse (RN) licensure by endorsement.

The Board gave two reasons for refusing to certify the applicant fo r

licensure pursuant to sections 456.072(2) and 464.018( 2 ), Florida Statutes

(2020) . 1 The Board found that in 2014, Mr. Fernandez's RN license was

revoked by the licensing authority , providing grounds to deny the license

pursuant to section 456.072(1)(f). The Board also found that Mr. Fernandez

pled nolo contendere to felony aggravated assault with a deadly weapon in

2001 . The Board found that the 2001 crime is related to the practice or the

ability to practice as a registered nurse, providing grounds to de ny the license

pursuant to sections 456.072(1)(c) and 464.018(1)(c) .

Mr. Fernandez timely petitioned for a formal disputed - fact administrative

hearing. The Board transmitted the case to DOAH fo r assignment of an

administrative law judge to conduct the re quested hearing.

Prior to the hearing, t he parties jointly filed a Pre - hearing Statement in

which they stipulated to two facts. Their stipulations are adopted and set

forth in the Findings of Fact bel ow .

Also prior to the hearing, Respondent filed an uno pposed Motion for

Official Recognition of Documents, which was granted. Official recognition

1 Unless otherwise indicated, all citations to the Florida Statutes are to the 2020 codification.

was taken of two related documents: a Final Order in Department of Health

v. Manuel Fernandez , Case No. 2009 - 07521 (Fla. Dep't of Health Jan. 16,

2014) (2014 Fin al Order) ; and the Administrative Complaint attached to and

incorporated in the 2014 Final Order . These documents were marked

Respondent's OR - 1A and OR - 1B, respectively, and are made a part of the

record. See § 120.57(1)( f ) 3. and (j) , Fla. Stat.

The heari ng was initially s et for April 6, 2021. However, neither

P etitioner nor his counsel appeared. Counsel for Petitioner was contacted and

he represented that he had encountered an emergency, requesting that the

hearing be rescheduled. Counsel for Respondent d id not object to

rescheduling the hearing and the undersigned agreed to the cancellation

provided that Petitioner's counsel file a motion explaining the emergency

circumstances. This was accomplished in an Emergency Motion for

Continuance filed on April 7, 2021. The motion was granted and the hearing

was rescheduled for May 4, 2021, via Zoom , when it went forward .

On May 3, 2021, the Board filed its Motion to Deem Board's Requests for

Admissions as Admitted. The Motion was taken up as a preliminary matter

at the outset of the hearing convened on May 4 , 2021, and was granted upon

the representation by Petitioner's counsel that the matters were admitted

and Petitioner did not object to the motion. The Requests for Admissions ,

bearing the undersigned's notatio n that the matters are deemed admitted ,

are included in the record .

Before testimony was taken , the undersigned reminded counsel of the

evidentiary standard for this proceeding, highlighting the limitations on

hearsay, pursuant to section 120.57(1)(c) and Florida Administrative Code

Rule 28 - 106.213.

Mr. Fernandez testified on his own behalf . He did not call other witnesses

or offer any exhibits into evidence. The Board presented testimony of Lisa

Johnson, who was accepted as an expert in the practice of p rofessional

nursing. Respondent's composite Exhibit 1 ( represented to be Petitioner's

application file ) and Exhibit 2 (Ms. Johnson's resume) were admitted into

evidence without objection.

The one - volume final hearing Transcript was filed on May 25, 2021.

Respondent timely filed its PRO. Petitioner did not file a PRO or other post -

hearing filing . Respondent's PRO and the evidentiary record ha ve been

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

Stipulated Facts

1. Mr. Fernandez pled nolo contendere to and was convicted of assault

with a deadl y weapon on June 26, 2001, in Dade County, Florida.

2. Mr. Fernandez's nursing license was revoked by Final Order issued on

January 16, 2014, for violating sections 464.018(1)(n) and 464.018( 1)(h),

Florida Statutes, and Florida Administrative Code Rules 64B9 - 8.005(2)(c)

and 64B9 - 8.005(1)(e).

Additional Facts

Based upon the credibility of the witnesses and evidence presented at the

final hearing , matters deemed admitted, and matters officially recognized ,

the following additional facts are found:

3. Petitioner was licensed in Florida as a n RN by the Board on April 11,

2001.

4. The matters giving rise to the stipulated facts above occurred at the

beginning and near the end of the span of time dur ing which Petitioner held

an RN license in Florida. No evidence was presented regarding Petitioner's

professional employment or activities during that time span, with the

exception of very limited facts surrounding the matters addressed in the two

stipulat ed facts above.

Pe rmanent Revocation of Pe titioner's RN License by the Board

5. In November 2009, an Administrative Complaint was issued against

Mr. Fernandez, charging him in three counts with violations of section

464.018(1)(n) (failing to meet minimal s tandards of acceptable and prevailing

nursing practice), rule 64B9 - 8.005(2)(c) (misappropriating drugs), section

464.018(1)(h) (unprofessional conduct), and rule 64B9 - 8.0 0 5(1)(e) (committing

acts of negligence, by omission or commission).

6. Petitioner, re presented by counsel, elected an informal proceeding not

involving disputed issues of material fact, choosing not to contest the

allegations and opting to address mitigating/aggravating circumstances in a

hearing before the Board.

7. On January 5, 2011, th e Board issued a Final Order concluding that

Mr. Fernandez committed the violations charged, and permanently revoking

his RN license as the penalty.

8. Mr. Fernandez retained a different lawyer (who was his counsel of

record in this case) to appeal the 201 1 Final Order. The appeal was resolved

by opinion in Fernandez v. Dep artment of Health, B oard of Nursing , 82 So. 3d

1202 (Fla. 4th DCA 2012) ( Fernandez I ). As described in the opinion, the only

issues raised on appeal were the penalty assessments for Count s I and II.

Accordingly, the court affirmed Count III without discussion. The court

reversed the penalty assessments for Counts I and II. As to Count I, the court

held that the 2011 Final Order was deficient for failing to explain the

reason ( s ) for increas ing the penalty above the penalty range in the Board's

penalty guidelines rule. As to Count II, the court held that no penalty could

be assessed for the violation found, because the Board had failed to adopt

penalty guidelines for that violation. The court therefore remanded the case

to allow the Board to reconsider the penalty assessed for just Counts I

and III . The court acknowledged the Board's statutory authority codified in

section 456.072(2)(b) to impose the penalty of permanent revocation , which

was not challenged by Mr. Fernandez. However, the court held that if the

Board chose to impose that penalty, it had to explain its reason (s) , since

permanent revocation exceed ed the penalty guidelines.

9. In Fernandez I , Mr. Fernandez did not challenge the fa irness of the

proceedings based on his election of an informal hearing. As the court pointed

out : "Fernandez elected an informal hearing. By doing so, Fernandez

admitted the factual allegations, seeking only to mitigate the penalties that

might be imposed. " Fernandez I , 82 So. 3d at 1203.

10 . On August 29, 2012, t he Board issued a second Final Order, again

permanently revoking Petitioner's RN license . To address the court's

directives in Fernandez I , the 2012 Final Order set forth five reasons

justifying an upward deviation from the penalty guidelines rule to impose the

penalty of permanent revocation .

11 . Mr. Fernandez appealed the 2012 Final Order , arguing that none of

the five reasons given for imposing the penalty of permanent revocation was

supported by competent substantial evidence. As to one of the five reasons,

t he court agreed . But a s to the other four reasons for increasing the penalty,

the court rejected Mr. Fernandez's challenge to the adequacy of supporting

evidence. Once again, the court recogn ized that the Board had the authority

to increase the penalty based on reasons supported by the record evidence .

However, the court could not determine whether, without considering the one

reason found insufficiently supported, the Board would have impose d the

same penalty. Therefore, the court remanded the case to the Board to

reconsider the penalty based on the four reasons upheld by the court as

adequately supported with record evidence. Fernandez v. Dep't of Health, Bd.

of Nursing , 120 So. 3d 117 (Fla. 4th DCA 2013) ( Fernandez II ).

12 . The 2014 Final Order was the Board's third and last Final Order. The

2014 Final Order set forth the four reasons to increase the penalty that were

upheld in Fernandez II , and again imposed the penalty of permanent

revo cati on of Petitioner's RN license.

1 3 . Mr. Fernandez did not appeal the 2014 Final Order. The permanent

revocation of his RN license is therefore the outcome of the disciplinary

action, and the findings of fact, conclusions of law, and penalty are binding on

P etitioner , as well as the Board.

14. The 2014 Final Order adopted the allegations of fact in the

Ad ministrative C omplaint, which were not disputed by Mr. Fernandez . The

admitted facts relevant to Counts I and III were as follows:

5. At all times material t o this Complaint,

Respondent was employed at Sunrise Home Health

Care (SHHC), located in Miami, Florida.

Respondent was assigned to provide home health

services to various clients of the agency.

6. On or about February 16, 2009, Patient MS, a 68

year old female, was a patient of SHHC. Patient

MS, a female, had a prescription for Heparin Lock

Flus h : Flush catheter with 3 - 5mL of Heparin after

last saline flush.

7. Heparin is used to prevent blood clots from

forming in people who have certain medical

conditi ons or who are undergoing certain medical

procedures that increase the chance that clots will

form. Heparin is also used to stop the growth of

clots that have already formed in the blood vessels,

but it cannot be used to decrease the size of the

clots that have already formed. Heparin is also

used in small amounts to prevent blood clots from

forming in catheters (small plastic tubes through

which medication can be administered or blood

drawn) that are left in veins over a period of time.

Heparin is in a cla ss of medications called

anticoagulants ('blood thinners'). It works by

decreasing the clotting ability of the blood.

8. Respondent is not an employee of Miramar

Memorial Hospital and does not have rights to

practice medicine at Miramar Memorial Hospital.

9. On or about March 18, 2009, Patient RM, a 44

year old female was a patient at Miramar Memorial

Hospital, located in Miramar, Florida. Patient RM

was known to the Respondent.

10. On or about March 18, 2009, patient RM gave

birth to twin female babies.

11. On or about March 19, 2009, Respondent was at

Miramar Memorial Hospital visiting Patient RM.

12. On or about March 19, 2009, Respondent

administered one or more syringes of Heparin (5cc

each), belonging to Patient MS, to Patient RM via

catheter. The syringes were found in the garbage

can of Patient RM by her assigned nurse MB, an

employee of Miramar Memorial Hospital.

13. On or about March 19, 2009, Patient RM did

not have a prescription or physician's order for the

use of Heparin.

14. On or about M arch 20, 2009, Respondent was

interviewed by the Miramar police and admitted

administering one syringe of Heparin to Patient

RM, without a physician's order.

15 . After adopting as its findings of fact the allegations in the

A dministrative C omplaint, the B oard made additional findings of

aggravating facts in the 2014 Final Order :

The Board finds aggravating facts as follows:

1. Respondent practiced nursing in a facility where

he was not employed.

2. Respondent administered medication that

belonged to anot her patient to RM, who was not his

patient.

3. The medication that was administered to RM

was brought into the hospital from Respondent's

car.

4. Respondent administered medication to RM that

was not ordered by RM's treating physician.

5. Respondent fai led to advise hospital staff that he

administered medication to RM.

6. Respondent administered heparin to RM to flush

a foley catheter, which is not proper protocol for

flushing a foley catheter.

7. Respondent has practiced nursing for 13 years.

16 . The 2014 Final Order then set forth the Board 's Conclusions of Law

that Mr. Fernandez violated section 464.018(1)(n) (as charged in Count I, for

failing to meet minimal standards of acceptable and prevailing nursing

practice by misappropriating drugs) and sec tion 464.018(1)(h) (as charged in

Count III, for engaging in unprofessional conduct through negligence, by

administering the medication Heparin to RM, who was not his assigned

patient, without physician's order and without any knowledge of the patient's

cu rrent medical treatment).

17 . The 2014 Final Order next addressed the penalty for those violations,

as follows:

The Board is empowered by Sections 464.018(2)

and 456.072(2), Florida Statutes, to impose a

penalty against the licensee. The Board finds that a

penalty harsher than the penalties stated in Rule

64B9 - 8.006 is warranted for the following reasons:

1. The danger to the public represented by

Respondent's actions.

2. The length of time Respondent has practiced

nursing.

3. The deterrent effect of the penalty being

imposed.

4. The failure of Respondent to correct the

violation.

18 . Based on those four reasons, the Board permanently revoked

Mr. Fernandez's RN license, effective upon the filing of the 2014 Final Order

with the Department of Health's Age ncy Clerk (which was on January 16,

2014).

19. Despite permanent revocation of his RN license, Mr. Fernandez filed

an application with the Board in 2020 for multistate RN licensure by

endorsement.

20 . The Board voted to deny the application at a noticed m eeting.

Mr. Fernandez did not appear at that meeting. The Board exercised its

authority under section s 456.072(2) and 464.018( 2 ) to refuse to certify the

applica nt for licensure because of the 2014 permanent revocation of

Mr. F ernandez's RN license, and al so because Mr. Fernandez's application

disclosed that he had pled nolo contendere and was convicted for felony

aggravated assault with a deadly weapon in 2001. 2 The Board found that the

crime was related to the practice of nursing or the ability to practic e nursing.

21 . Mr. Fernandez requested a disputed - fact administrative hearing to

contest the proposed denial of his application. He raised as the only disputed

fact whether the 2001 conviction was directly related to the practice of

nursing. He asserted th at it was not, and contended that the applicable

statutes and rules require that a criminal conviction must be directly related

to one's professional practice . Based on his argument directed to one of the

two reasons cited in the Notice of Intent to Deny , Mr. Fernandez contended

that the Board should approve his application for RN licensure.

22. Mr. Fernandez's hearing request did not take issue with, or address,

the other basis for the Board's refusal to certify the applica nt for approval Ð

that the Board h ad permanently revoked Mr. Fernandez's RN license by the

2014 Final Order. At the hearing, although Petitioner sought to dispute the

2 "Road rage" was the term used by Petitioner's attorney in his opening statement to describe

the incident underlying the 2001 nol o plea and conviction for felony aggravated assault with

a deadly weapon. That description is apt, based on the evidence.

facts on which the 2014 Final Order was predicated, he offered no argument

as to why he should be permitted to contest thos e facts now, or why he should

be permitted to apply for an RN license in Florida at all, following the

permanent revocation of his RN license.

Evidence Related to Whether Petitioner Proved Entitlement to Licensure

23. Assuming, arguendo, that the permanent revocation of Petitioner's RN

license does not act to bar him from applying anew for an RN license, the

next question is wh at evidence supports Mr. Fernandez's qualifications to

meet the requirements for the license for which he has applied.

24 . As the li cense applicant, at the final hearing Mr. Fernandez presented

his case first. Mr. Fernandez did not offer his 2020 license application in to

evidence. The only document identified as a potential exhibit for Petitioner in

the parties' Pre - hearing Statement w as Mr. Fernandez's resume, but his

resume was not offered into evidence.

25 . Although Petitioner did not offer his 2020 application in evidence,

Respondent did so, presenting as a composite exhibit what was described as

Petitioner's 2020 application file. 3

26 . Neither Petitioner nor Respondent addressed, through evidence or

argument at the hearing or by post - hearing submittal, whether the evidence

supports a finding that Petitioner made a preliminary showing of compliance

with the requirements for multista te RN licensure by endorsement.

27 . The application form completed by Petitioner and signed on

September 1 0, 2020, reflects that Petitioner is seeking multistate RN

licensure by endorsement based on having successfully applied for and

obtained RN licensure by examination in Florida in 2001.

3 The portions of the application that are Mr. Fernandez's own statements can be considered

admissions when offered against him, but statements recounting what others said or

statements submitted by others are hearsay that cannot be the sole basis for findings of fact.

See § 90.803(18)(a), Fla. Stat. (statements of a party offered against the party are admissible

as exceptions to the he arsay prohibition).

28. Petitioner's application reflects that he has held one, and only one,

nursing license in any state, and that is the Florida RN license number

9177203, issued on April 11, 2001, which was permanently revoked by the

2 014 Final Order.

29. At the time Mr. Fernandez submitted h is 2020 application, he did not

hold an active license to practice nursing in another state.

30 . No evidence was offered at the hearing to prove that Mr. Fernandez

has ever held a license to pract ice nursing in another state. No evidence was

offered to prove that Mr. Fernandez has actively practiced nursing in another

state for two of the last three years, as would stand to reason in the absence

of evidence that he holds a license to practice nursi ng in another state.

31. Mr. Fernandez designated the state of Florida as his "home state" for

purposes of seeking a multistate license, and acknowledged that he does not

hold a multistate license in any other state.

3 2 . In separate application sections a sking about the applicant's criminal

history and disciplinary history, Mr. Fernandez disclosed his felony

conviction for the road rage incident and the Board's revocation of his Florida

RN license.

3 3 . These disclosures triggered requirements in each secti on that the

applicant provide: (1) a self - explanation describing the circumstances ;

(2) attach documentation (court records for the criminal history; complaint

and Final Order for the disciplinary history) ; and (3) three "current (written

within the last y ear) professional Letters of Recommendation ." ( underline

and bold in original).

Petitioner's Response to Permanent Revocation Per 2014 Final Order

3 4 . In his 2020 application, Mr. Fernandez took the opportunity in his

self - explanation of the 2014 Final Ord er to dispute the findings and

conclusions, and offer his own version of what happened.

3 5 . Mr. Fernandez began his self - explanation by characterizing his actions

as a "BIG mistake." Mr. Fernandez's self - explanation to the Board went on to

describe his vis it to the hospital to see RM , FV's wife, who had given birth to

twins. Mr. Fernandez described FV as an old friend who was also the owner

of the home health agency where he worked. He said his friend/boss, FV, had

called three times urging him to come visi t to see the babies. Mr. Fernandez

described being in RM's hospital room wh ile RM's assigned nurse was

tending to the patient and inserting a foley catheter. He described how

thereafter, he and his friend/boss became concerned about the patient's

status, c alled the assigned nurse "more than 4 times" and suggested that she

take action that they thoug ht was needed, but the nurse disagreed. According

to Mr. Fernandez, he and FV "were there asking and begging her [the

assigned nurse] for proper nurse implementa tions, we talk [to] her many

times È but she never implements" what they were urging. The nurse

contacted the patient's physician, who gave orders for medication, which was

administered by the patient's assigned nurse. Mr. Fernandez said that after

the nur se had implemented the doctor's orders, both RM (the patient) and FV

(his friend/boss) asked Mr. Fernandez to help the patient, "knowing that I

have on my car saline flushes Syringes [sic]." He said he asked the nurse one

more time to take the step he thou ght was needed, but she did not. He and

FV then went to the parking garage to Mr. Fernandez's car. Mr. Fernandez

claimed he intended to get some saline syringes that he uses to flush his

home health patients' catheters. Mr. Fernandez claimed that "fatally within

those saline syringes flush Bag there were 2 heparin flush syringes," and he

assigned blame to the home health office for putting the heparin syringes in

the saline syringe bag by mistake. He admitted he took the bag with him to

RM's room and perfor med the foley catheter flush. He also explained that

"due to the rush of the situation and the effect of [FV] requesting my help (my

home health boss) I had a poor judgment and flushed the [RM] Foley Cath, no

realizing at that moment she was not my patient ." (e rrors in original;

e mphasis added).

3 6 . Mr. Fernandez added in his self - explanation that RM's assigned nurse

found two heparin flush syringes in the patient's garbage can (confirming

that Mr. Fernandez did not tell the assigned nurse or anyone else th at he had

administered to RM what he claimed he thought were saline flushes, but

instead were heparin flushes), and the assigned nurse called the police.

3 7 . Mr. Fernandez claimed he volunteered to the police that he was the

one who administered the hepar in flushes only because the police thought FV

had tried to kill his wife after finding the two heparin flush syringes in her

garbage can. He expressed regret for telling the truth: "And I blame my self -

telling police the true."

3 8 . Mr. Fernandez proceeded in his self - explanation to accuse both RM

and FV of lying to the police by saying they never asked Mr. Fernandez for

help. As Mr. Fernandez put it, when RM was interviewed by the police, "she

denies THE TRUTH, she lied, she say NO to an important question done by

the police, at that moment she denies requesting my help, the police asks her

3 times and 3 times she denial asking me for help that day." (errors in

original). Mr. Fernandez then blamed his friend / boss, claiming RM later told

him that "she lied to policeman following advice from her husband [FV], (who

for fear or afraid of being discovered stealing from Medicaid and Medicare on

his agency decided to lie to the police, [FV] the person who was my friend and

the one who call me to the hospital that da y willing to know my opinion about

[RM's] poor condition, the same who asked me for help, the owner of

community care home health nursing agency in which I usually work ed

under his orders. He instructed [RM] to lied to police)." (errors in original).

3 9 . M r. Fernandez's self - explanation ended with one final accusation Ð

that the attorney he hired to represent him in the disciplinary case also lied:

"I hired and lawyer Office for a formal hearing in from of board of nursing but

they also lied to me and sent p apers requesting an informal hearing È . In a

formal hearing true will clarified the incident and the final result again my

RN license it could have been different but the malpractice and bad

representation from my lawyer requesting an informal hearing in from of the

board of nursing [d]on't allow me to dispute the charges on the

a dministrative complaint." (errors in original).

40 . As noted above, though, Mr. Fernandez retained a different lawyer Ð

his counsel of record in this case Ð to appeal the first two F inal Orders, and

no issue was raised in Fernandez I or Fernandez II with regard to the

propriety of the election or the resulting informal hearing.

4 1 . At the hearing, Mr. Fernandez addressed the permanent revocation of

his RN license by attempting to disp ute the facts that he was deemed to have

admitted (as stated by the court in Fernandez I ). He offered testimony that

was somewhat similar to his self - explanation, although there were several

notable inconsistencies. Mr. Fernandez went into detail in descri bing the

patient's condition , in an attempt to justify the appropriateness of what he

did, although he offered no medical records to prove what he described. He

offered largely hearsay testimony regarding what he was told by RM and FV,

but offered no non - h earsay evidence (such as the testimony of FV, whom

Mr. Fernandez continued to describe as his best friend). He offered some of

the same accusations directed to RM's assigned nurs e , although again, he

offered no medical records to support his description of RM 's condition, nor

did he offer non - hearsay testimony to prove alleged conversations with the

nurse. He repeated his claim that RM and FV begged him for help, omitt ing

any reference to the different story they apparently told the police (which he

charact erized in his self - explanation as lies). Again, no corroborating non -

hearsay testimony was offered, such as testimony from FV, his " best friend. "

4 2 . In the self - explanation, Mr. Fernandez only said that he and FV asked

the assigned nurse multiple times to implement the procedure they thought

was needed, a nd that in the rush and pressure of being asked for help by his

friend and boss, he did not even realize that RM was not his patient . And

rather than attempt to justify giving heparin to RM that was prescr ibed for

one of his home health agency patients , wi thout knowing RM's medical

background and without doctor's orders, Mr. Fernandez claimed that the

home health agency put the heparin in the wrong bag by mistake. In marked

contrast, at the final hearing Mr . Fernandez expanded his hearsay testimony

to claim : that he asked other hospital staff members for help, to no avail;

that the patient's condition required administration of heparin ; and that he

only took matters into his own hands as a last resort to add ress what he

believed to be an emergency situation. 4 His embellishments lacked

credibility, were inconsistent with his self - explanation (which also suffered

from credibility questions 5 ), and rel ied almost exclusively on hearsay that

cannot be considered. W hat Mr. Fernandez did show, by his testimony and

self - explanation, was that he accepts little to no responsibility, and instead,

continues to blame and accuse everyone else for his actions.

4 3 . Even if he had offered credible, non - hearsay evidence , Mr. Fe rnandez

is bound by facts found in the 2014 Final Order permanently revoking his

license . H is testimony c annot be accepted, because it was c ontrary to facts he

is not entitled to relitigate. These include the finding that he "administered

heparin to RM to flush a foley catheter, which is not proper protocol for

flushing a foley catheter." 2014 Final Order at 2, aggravating fact 6.

4 4 . Mr. Fernandez is also bound by the reasons found by the Board to

increase his penalty, including the first reason : "The dan ger to the public

represented by [Mr. Fernandez's] actions." 2014 Final Order at 3. He had his

opportunity to challenge the sufficiency of the evidence supporting that

finding, and t he court rejected that challenge in Fernandez II .

45. Mr. Fernandez offere d no evidence to prove that he should no longer

be considered a danger to the public. No evidence was offered to prove what

Mr. Fernandez has been doing since the 2014 Final Order was issued. He

4 Mr. Fernandez claimed he was told c riminal charges filed against him would be dropped

because he was acting as a Good Samaritan. This blatant hearsay cannot be considered.

5 Mr. Fernandez's claim s that he did not intend to administer heparin and that he did not

realize R M was not his patient are , quite simply, unbelievable.

offered no proof of rehabilitative steps taken, professional activities,

educational endeavors Ð nothing. The record is devoid of evidence to overcome

the negative implications from the 2014 Final Order and the findings therein.

Petitioner's Response to Felony Conviction for Ro ad Rage Incident

4 6 . Nineteen days after Petitioner's Florida RN license was issued, on

April 30, 2001, Petitioner committed an episode of "road rage." He was

charged with aggravated assault with a deadly weapon , a third - degree felony.

He pled nol o contendere and was convicted of this charge . For his crime, i n

addition to a probationary term, Petitioner was required to take an anger

management course.

4 7 . In his 2020 application, Mr. Fernandez included a short self -

explanation to the Board , along with the court records, as required. In his

self - ex planation, he said that he thought another vehicle cut him off, and

instead of getting an apology from the driver, the driver gestured with her

middle finger. (Petitioner described the driver of the other vehicle as a male,

but the court records he provide d clearly identif ied the other driver as a

female.) Petitioner admitted that he reacted to the gesture "with anger . " He

accelerated, made a U - turn, and forced the driver to pull off the road so he

could confront her. (Petitioner did not describe what he di d as forcing the

other driver off the road; instead, he said that he accelerated and did the U -

turn so that, once he was alongside the other driver, they could have a

" discussion " through her car window. Yet, the only way it would have been

possible to hav e a "discussion" with the driver through the window is if

Petitioner was able to get the other vehicle to pull off the road so he could

also stop his vehicle, approach the other vehicle, and have the so - called

discussion with the other driver through the w indow.)

4 8 . Petitioner admitted that his acceleration and U - turn were observed by

a police officer. The eyewitness police officer completed a police report in

affidavit form, which provide d additional details corroborat ing and

supplement ing Petitioner's 2 020 self - explanation.

4 9 . According to the police report, the officer observed an initial close

encounter between Mr. Fernandez's vehicle and the "victim's" vehicle. After

the initial close encounter, in which no contact was made, Mr. Fernandez

"began to s pin his wheels and make a 180 [ - degree ] aggressive turn to go after

v ictim. While doing so and on his cellular phone, he jumped the concrete

median and began to chase the victim." The police officer followed the two

vehicles. The officer observed Mr. Fernan dez pull his 2000 black Ford

Expedition alongside of the victim and then swerve to cut off the victim's

vehicle , forcing the victim t o veer her vehicle off the road to avoid a collision .

When Mr. Fernandez had successfully maneuvered the victim to stop her

vehicle, he also stopped, exited his vehicle, and confronted the victim in her

vehicle. The victim put her window down, whereupon Mr. Fernandez began

to scream obscenities at the victim in both English and Spanish. At that

point, the officer intervened. T he officer directed the victim to sit on the curb

and he interviewed her. The officer observed the victim to be visibly shaken.

Mr. Fernandez was placed in custody and transported to the police station.

50 . The eyewitness officer summarized his observatio ns as follows:

"[Mr. Fernandez] displayed a wanton disregard for the safety of other

motorists (running red light, jumping median, cutting victim['s] vehicle off)."

He concluded the police report with the following addition : "Det [ective]

E. Garcia conducte d interview of [Mr. Fernandez]. [Mr. Fernandez] admitted

to purposely swerving his vehicle into the victim's path to stop the vehicle."

51 . In Petitioner's self - explanation to the Board , he characterized his

actions as follows : "I made a mistake and acce lerated my car toward the

[other vehicle] looking for an apology from him [sic]." "I made a mistake when

I decide to chase the [other vehicle] and started a discussion with that person.

I should no confront him [sic], I should have to continue my way[.]"

5 2 . At the hearing, Petitioner, through counsel, offered two arguments for

why the Board should not consider the felony conviction for the road rage

incident as a reason to deny Petitioner's application. First, through argument

only, counsel asserted that t he nolo plea and conviction for felony aggravated

assault with a deadly weapon did not involve a crime that is related to the

practice of nursing or the ability to practice nursing. Second, Petitioner's

counsel raised for the first time 6 the argument t hat the Board should be

estopped from asserting the felony conviction for the road rage incident as a

reason to deny Petitioner's 2020 application . Counsel argued that Petitioner

would have had to disclose the crime on every biannual license renewal

applicatio n , in 2003, 2005, 2007, and 2009, until his license was revoked , and

the Board should be estopped from raising this crime now because the Board

purportedly knew about the crime and did not attempt to revoke or otherwise

discipline Petitioner.

5 3 . P etitione r did not offer any testimony regarding whether felony

aggravated assault with a deadly weapon is , or should under the

circumstances be considered, a crime related to the practice of nursing or the

ability to practice nursing . Respondent presented testimon y of Lisa Johnson,

accepted as an expert in the practice of professional nursing. Ms. Johnson

offered the opinion that Petitioner's road rage crime was r elated to the

practice of or the ability to practice nursing. Her opinion was credible, was

not refuted , and is credited.

5 4 . Ms. Johnson based her opinion on two separate rationales. First, she

explained that, based on her review of Petitioner's application, including the

police report , Petitioner's conduct was "very disturbing." She opined that

Petitioner 's extreme reaction out of anger upon being upset by another driver,

endangering other motorists, was contrary to the character and qualities

required for the practice of professional nursing. She explained the

importance of nurses always keeping a level h ead. Nurses must always

6 Consistent with his hearing request, Petitioner stated his position in the joint Prehearing

Statement in a single point, as follows: "Mr. Fernandez [sic] convict ion for aggravated

assault was not related to the practice of nursing."

critically think, and make decisions that are educated and informed, rather

than driven by emotion. She added that one of the most surprising things was

that the felony occurred just 19 days after Petitioner's RN license was issue d,

when he had just taken the oath and the expectations of the nursing

profession were still fresh in his mind.

5 5 . Ms. Johnson also pointed to the background screening laws applicable

to a Level 2 screening, which Petitioner would have to undergo in order to

work as a n RN in health care facilities and virtually all other health care

settings. Petitioner's nolo plea and conviction for felony aggravated assault

with a deadly weapon is a disqualifying offense, meaning that Petitioner

would be disqualified fro m working as a nurse in a hospital, nursing home,

assisted living facility, home health agency, health care clinic , or other health

care settings (such as nurse registries) that are required to conduct

background screening of persons who provide personal c are or services

direct ly to patients/residents /clients . Petitioner would have the option of

applying to the Board for an exemption from disqualification , and in such an

application, he would have to provide clear and convincing evidence that he is

rehabili tated .

5 6 . No evidence was offered by Petitioner to indicate that he ever sought

and obtained an exemption from disqualification from the Board because of

his disqualifying offense , as should have been necessary for him to be

providing patient care to ho me health agency patients.

5 7 . No evidence was offered by Petitioner to support the claim that the

Board was aware of the crime, as the predicate for counsel's new estoppel

argument. T he only testimony from Petitioner about this subject was that he

renewe d his nursing license every two years , and at the time he renewed his

application in 2003, "the department was aware" of his crime. (Tr. 17,

emphasis added). He referred vaguely to having "sent in all the paperwork"

and every two years they allowed him to continue working as a nurse.

5 8 . Petitioner did not testify that the Board had knowledge of the road

rage incident or resulting nolo plea/conviction at any point before the

application he filed in 2020 at issue in this case. No evidence was offered by

Peti tioner of : (1) h is actual RN license renewal applications ; (2) whether the

RN license renewal applications were submitted to the Department of Health

(as he seemed to suggest) and not to the Board 7 ; or (3) the extent to which he

did or did not disclose the felony conviction , submit a detailed self -

explanation , or submit the court records, including the police report, as he did

in the 2020 application at issue here. Petitioner's testimony falls short of

proof as to what, if any, disclosures he made to the Bo ard prior to 2020. There

is no evidentiary basis to support a finding that the Board had prior

knowledge of the road rage incident or felony conviction resulting from that

incident.

Requirement for Recent Professional Recommendation s

5 9 . In response to dis closures of disciplinary history and criminal history

in his 2020 application , the Board required Petitioner to submit three recent

professional letters of recommendation. "Recent" was defined as "written

within the last year."

60 . In the de novo administ rative hearing, it was incumbent on Petitioner

to offer non - hearsay evidence serving the same purpose as the Board's

requirement to submit recent professional letters of recommendation: to

overcome the implication from the disciplinary history and criminal history

that Petitioner is unfit for licensure.

61 . Completely lacking at the hearing was any evidence regarding why

Mr. Fernandez should now be trusted to not react with anger or rush into

action based on emotions, as he did at the beginning and the end of his RN

licensure tenure in Florida. In 2014, the Board determined that Petitioner's

rash actions represented a danger to the public. No evidence was presented

7 Respondent confirmed in its PRO that RN license renewal applications are submitted to

and processed by the Department of Health, not the Board.

regarding what Mr. Fernandez has been doing since his license was revoked ,

to overcome the fin ding made in the 2014 Final Order . No character

witnesses were offered. Mr. Fernandez did not present testimony, for

example, of the three authors of the letters of support submitted with his

application, to provide non - hearsay testimony offering recent po sitive

professional support to potentially show rehabilitation despite his prior RN

license revocation and his prior felony conviction. 8

Ultimate Findings of Fact

6 2 . Mr. Fernandez did not meet his burden of presenting evidence to

demonstrate his qualifi cations for multistate RN licensure by endorsement

for which he has applied.

8 The three letters in Petitioner's ap plication are hearsay and cannot be considered in this

proceeding. Even if their hearsay nature were not an impediment, there are serious

questions as to their reliability as "recent" letters. For example, one letter appears to be a

recommendation for a jo b as a First Surgical Assistant (which presumably would require an

active license that Mr. Fernandez has not had for at least seven years). In it, the author

state d vaguely that "I have known Manuel Fernandez for the past number of years" and that

Mr. Fern andez "has been working for Sunrise Home Health Care, Inc. for the past years as a

RN with excellent evaluation." The letter was typed in its entirety except for the signature

and the date, 6/20/2020, which was handwritten at top Ð a very curious form for a

professional letter of recommendation. As of June 2020, it had been many years since

Mr. Fernandez worked at the home health agency as an RN. Either the author was

intentionally misleading by describing what sounded like Mr. Fernandez's current and recent

experience as an RN, or the letter was written many years ago. Similarly, in another letter,

the author described "Nurse Fernandez" as caring of his patients and dedicated to his job.

The author stated she has known Nurse Fernandez for four years. The lett er was typed,

including the word "Dated:" typed just above the signature. However, the date itself was not

typed; instead, 7/12/2020 was handwritten next to the typed "Dated:. " But if the letter was

written in July 2020, the author could not have vouched f or "Nurse Fernandez" or described

him as caring of his patients, because the author stated she only knew him for four years and

Mr. Fernandez was not licensed to practice nursing or care for patients between July 2016

and July 2020. Here too, the impressio n from the letter's contents is that the letter was

written many years ago , and the handwritten date was a fabrication. So too, the third letter

was typewritten except for the date, 9/10/2020, added in handwriting. The third letter

described Mr. Fernandez as a joy to work with, well - liked by his nursing colleagues, and a

resource for "other" nurses to help with difficult cases. The description is in the current

tense, as if Mr. Fernandez was currently working as a nurse at the time the letter was

written. O nce again, the handwritten date is incongruous, both as to form of a professional

letter of recommendation, and as to the substance, since Mr. Fernandez could not have been

practicing nursing in September 2020 or at any time for years before then .

6 3 . The Board proved that Petitioner had his RN license permanently

revoked based on violations of Florida law, for actions that represented a

danger to public.

6 4 . The Board prov ed that Petitioner pled nolo contendere and was

convicted of a felony crime related to the practice of nursing or the ability to

practice nursing.

6 5 . Mr. Fernandez did not prove that the Board had prior knowledge of

his nolo plea and conviction.

6 6 . Mr. Fernandez offered no evidence to overcome the fitness concerns

from his disciplinary history and criminal history . Instead, he continued to

argue with the prior determinations, and demonstrated a lack of candor and

deflection of responsibility to others i n so doing.

C ONCLUSIONS OF L AW

6 7 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding, pursuant to sections

120.569 and 120.57(1), Florida Statutes.

6 8 . As the applicant for licensure, Petit ioner bears the burden at hearing

of going forward initially with proof of his qualifications, and he carries the

ultimate burden of persuasion as to his entitlement to the license for which

he has applied. Dep't of Banking & Fin. v. Osborne Stern & Co. , 6 70 So. 2d

932, 934 (Fla. 1996).

6 9 . The Board specified two reasons for denying Petitioner's application :

( 1 ) The Board's permanent revocation of Petitioner's RN license for violations

of Florida law , grounds for denying the application pursuant to section

456.072(1)(f) ; and (2) Petitioner's nolo plea and conviction for felony

aggravated assault with a deadly weapon, found to be a crime related to the

practice or ability to practice nursing, grounds for denying the application

pursuant to sections 456.072(1 )(c) and 464.018(1)(c) . The Board bears the

burden of proving that Petitioner violated the specified statutes , which

establish grounds to deny the application as a regulatory measure based on

the applicant's unfitness for licensure. Osborne Stern , 670 So. 2d at 934.

70 . Pursuant to section 120.57(1)(k), the DOAH administrative hearing is

de novo . Findings of fact made by the presiding judge must be based solely on

evidence admitted during the hearing and matters officially recognized.

§ 120.57(1)(j), Fla. S tat. The only exceptions are for matters deemed admitted

pursuant to Florida Rule of Civil Procedure 1.360(a), and facts to which the

parties have stipulated. See Delgado v. Ag. for Health Care Admin. , 237

So. 3d 432, 437 (Fla. 1st DCA 2018).

71 . The stan dard of proof , both with regard to Petitioner's burden to prove

entitlement to the license for which he has applied and with regard to

Respondent's burden to prove t he specific violations relied on to deny the

application, is by a preponderance of the evid ence. Fla. Dep't of Child. &

Fams. v. Davis Fam. Day Care Home , 160 So. 3d 854, 857 (Fla. 2015). The

standard of proof as to the equitable estoppel claim raised by Petitioner's

counsel during the hearing is the clear and convincing evidence standard.

Hoffm an v. Dep't of Mgmt. Servs., Div. of Retirement , 964 So. 2d 163, 166

(Fla. 1st DCA 2007).

7 2 . As the agency responsible for regulating the profession of nursing

under the state's police power, the Board has particularly broad discretion to

determine the fi tness of applicants who are seeking to engage in an

occupation , the conduct of which is a privilege rather than a right, and which

is potentially injurious to the public welfare. Osborne Stern , 670 So. 2d at

934 ; Astral Liquors, Inc. v. Dep't of Bus. Reg. , 463 So. 2d 1130, 1132 (Fla.

1985) ("[D]iscretionary authority is particularly necessary where an agency

regulates occupations which are practiced by privilege rather than by right

and which are potentially injurious to the public welfare.") (internal

quot ations omitted).

7 3 . Petitioner failed to meet his initial burden of going forward with

evidence to prove he qualifies for licensure for which he has applied. He did

not even offer his completed application in evidence in his case - in - chief.

7 4 . The Notice of Intent to Deny characterized Petitioner's 2020

application as an application for multistate RN licensure by endorsement .

That characterization is consistent with Petitioner's designation of Florida as

his "home state" in his application, a designation t hat must be made if the

applicant is requesting a multistate license. Petitioner did not dispute that

characterization of his application in his hearing request or during the

hearing. Petitioner's 2001 felony conviction disqualifies him from obtaining a

mu ltistate RN license. See § 464.0095, Article III (3)(g) , Fla. Stat. (providing

that in order to obtain a multistate license in the applicant's home state, the

applicant must not have been convicted of "a felony offense" under state or

federal criminal law ) .

7 5 . The Board proved that Petitioner had his license to practice nursing

revoked by the licensing authority for violations under Florida law . Pursuant

to section 456.072(1)(f) and (2), the 2014 Final Order revoking Petitioner's

RN license provides groun ds to deny Petitioner's 2020 application for

multistate RN licensure by endorsement.

76. It is by no means clear that the permanent revocation of Petitioner's

RN license should not stand as a bar to Petitioner's attempted application for

another RN license in Florida. See, e.g., Long e necker v. Turlington , 464 So. 2d

1249 (Fla. 1st DCA 1985). In Long e necker , a teacher's application for a

teaching certificate was denied by the Department of Education because the

teacher's original teaching certificate had bee n permanently revoked. The

court affirmed. After quoting the statutory authority to suspend, temporarily

revoke, or permanently revoke a teacher's teaching certificate, the court

analyzed the teacher's request for relief as follows:

In the instant appeal, without challenging the

statute itself, appellant urges us to adopt a

beneficient interpretation of the statutory term

"permanent" in order that the disciplinary measure

exacted against him might endure for a period of

time something short of eternity. We re we inclined

to accord appellant such judicial clemency, our

benevolence would nonetheless be checked by the

specific legislative scheme embodied in section

231.28 [now section 1012.795 , Florida Statutes ],

clearly evincing the legislature's intent that

" permanent" means "permanent."

Longenecker , 464 So. 2d at 1250. The court concluded that since "'permanent'

means 'permanent'" the teacher's right to reinstatement of, or reapplication

for, a teaching certificate was foreclosed. Id. So, too, in Fernandez I and

Fernandez II , the court acknowledged the statutory authority of the Board to

impose the penalty of permanent revocation of Mr. Fernandez's RN license ,

as the Board ultimately did in the 2014 Final Order, pursuant to section

456.072(2)(b), Florida Stat utes (2008) (the law in effect at the time of the

underlying violations). Section 456.072(2)(b) remains unchanged, still

authorizing "permanent revocation."

77. If the 2014 Final Order does not stand as a bar to Petitioner's re -

application for an RN licen se, then without question se ction 456.072(1)(f)

provides grounds for denying Petitioner's application. Section 456.072(1)(f) is

triggered by action against a license to practice any regulated profession "by

the licensing authority of any jurisdiction" 9 f or a violation that would

constitute a violation under Florida law. The permanent r evocation of

Petitioner's RN license by the Board for violations of Florida law plainly falls

within the ambit of this statute , and Petitioner has not suggested otherwise .

9 In con trast, section 464.018(1)(b), not cited by the Board in the Notice of Intent to Deny,

applies only to "[h]aving a license to practice nursing revoked, suspended, or otherwise acted

against, including the denial of licensure, by the licensing authority of a nother state,

territory, or country . " (emphasis added). The different phrase chosen in section

456.072(1)(b) Ð "any jurisdiction" Ð must be interpreted differently. Florida is certainly "any

jurisdiction."

It would be an absurd interpretation of the law to conclude that the Board is

somehow precluded from denying Petitioner's 2020 license application based

on the permanent revocation of P etitioner's RN license in 2014 for violations

of Florida law.

78 . Of part icular significance in the 2014 Final Order is the first reason

given by the Board for permanently revoking Petitioner's RN license : " The

danger to the public represented by Respondent's actions." Final Order at 3.

The p ermanent revocation of Petitioner's license, and the reasons for it, stand

as compelling evidence of his unfitness to be licensed to practice nursing in

Florida . If Petitioner is not barred altogether from submitting a new

application, then t he Board must be afforded the discretion to determ ine in

2021 whether Petitioner can overcome that by proving that he is no longer

unfit to be licensed.

79 . On this point, the record is devoid of any evidence to prove that

Petitioner has regained fitness to be licensed as an RN, after the Board found

that his license had to be permanently revoked because his actions

represented a danger to the public in the 2014 Final Order. Instead, it is

apparent from Petitioner's testimony that Petitioner has not accepted the

findings in the 2014 Final Order, even thoug h he is bound by them. He did

not attempt to prove he is no longer a danger to the public; instead, he argued

with the factual premises of the 2014 Final Order. And he contradicted

himself in retelling what happened, displaying a lack of candor.

8 0 . The Bo ard also proved that Petitioner's nolo plea and conviction for

felony aggravated assault with a deadly weapon was for a crime related to

the practice of, or the ability to practice, nursing, which provides separate

grounds to deny his application for multi state RN licensure by endorsement,

pursuant to section 456.072(1)(c). 10

10 Section 464.018(1)(c), also cited by the Board, con tains language similar to section

456.072(1)(c), with one notable difference: section 464.018(1)(c) requires that the crime be

directly related to the practice of nursing or the ability to practice nursing. Section

456.072(1)(c) does not add the word "dire ctly."

8 1 . The Board's expert reasonably opined that evidence 11 of the

circumstances of the road rage incident that led to the nolo plea and

conviction were disturbing , raising serious concerns about Petitioner's

character and judgment. His actions were in stark contrast to the attributes

needed to practice nursing: level - headed, critical thinking, and never acting

off emotion.

8 2 . The statutory provisions addressing crimes related to the practi ce of or

the ability to practice a profession are not to be interpreted as limited to acts

specifically listed in the statutory definition of the practice of a profession.

Doll v. Dep't of Health , 969 So. 2d 1103 (Fla. 1st DCA 2007). In Doll , the

court he ld that a chiropractic physician's crime of conspiracy to defraud a

health beneficiary program was related to the practice of, or the ability to

practice, his profession. In deciding that question, the court held that its

inquiry was not limited to the tec hnical ability of Doll in his practice in an

office setting. "If the crime relates to or presents a danger to public welfare,

as it did, that in itself would be grounds to impose discipline." Id. at 1105.

The court added that Doll's crime demonstrated "a l ack of honesty, integrity,

and judgmentÈ . That conduct breached the trust and confidence placed in

Doll by his licensure[.]" Id . As further support for its interpretation, the court

cataloged appellate cases similarly applying the same law, as follows:

S everal cases demonstrate that, although the

statutory definition of a particular profession does

not specifically refer to acts involved in the crime

committed, the crime may nevertheless relate to

the profession. In Greenwald v. Department of

Professional Regulation , the court affirmed the

revocation of a medical doctor's license after the

doctor was convicted of solicitation to commit first -

degree murder. 501 So. 2d 740 (Fla. 3d DCA 1987).

11 The eyewitness police officer's sworn statement of his personal observations would be

admissible over a hearsay objection in a civil action in Florida, pursuant to the exception to

the hearsay prohibition in se ction 90.803(8) , Florida Statutes . Po lice reports/statement s of

matters observed by the officers are admissible under that exception, except in criminal

cases . Therefore, the police report/affidavit ma y be considered as substantive evidence of the

truth of the matters asserted .

The Fifth District Court of Appeal has held that

although an accou ntant's fraudulent acts involving

gambling did not relate to his technical ability to

practice public accounting, the acts did justify

revocation of the accountant's license for being

convicted of a crime that directly relates to the

practice of public acc ounting. Ashe v. Dep't of Prof'l

Regulation, Bd. of Accountancy , 467 So. 2d 814

(Fla. 5 th DCA 1985). We held in Rush v.

Department of Professional Regulation, Board of

Podiatry , that a conviction for conspiracy to import

marijuana is directly related to th e practice or

ability to practice podiatry. 448 So. 2d 26 (Fla. 1st

DCA 1984). These cases demonstrate, in our view,

that appellee did not err by concluding Doll's

conviction was "related to" the practice of

chiropractic medicine or the ability to practice

chiropractic medicine. We therefore affirm

appellee's actions finding appellant in violation of

section 456.072(1)(c) and revoking appellant's

license.

Doll , 969 So. 2d at 1106.

8 3 . As in Doll , Petitioner's crime stands as evidence of his lack of integri ty

and judgment, as well as his inability to tamp down his anger or resist an

emotional response in the heat of anger. 12 As in Rush , 448 So. 2d at 27,

Petitioner's conduct "shows a lack of honesty, integrity, and judgment, and an

unwillingness to abide by t he Laws of the State of Florida[.]"

8 4 . As further support for concluding Petitioner's crime must be

considered related to the practice of or ability to practice nursing, the

Legislature has designated the crime as a disqualifying offense for nurses

employ ed in virtually all health care settings, including the home health

agency setting where Petitioner was working. Petitioner would not be

permitted to work as a nurse in such a setting without first obtaining an

12 Some of thes e same attributes were on display in 2009, when Petitioner once again

exercised poor judgment, driven by a rush of emotional response, as he admitted in his self -

explanation submitted to the Board with his 2020 application. He claimed his judgment was

so c louded that he was not even aware that RM was not his patient.

exemption from disqualification by providing clear and convincing evidence to

the Board that he is rehabilitated. Petitioner presented no evidence that he

obtained such an exemption from disqualification from the Board.

8 5 . The belated attempt of Petitioner's counsel to assert the "defense" of

estopp el fell flat, due to a complete absence of evidentiary predicate. As such,

it is unnecessary to dwell on the legal analysis. 13 Petitioner failed to prove

that the Board should be estopped from raising his road rage crime as a basis

for denying his applicati on.

8 6 . The Board met its burden to prove the specific statutory violations

identified in the Notice of Intent to Deny, as proof of Petitioner's lack of

fitness for licensure.

8 7 . Petitioner failed to meet his ultimate burden of persuasion that he is

enti tled to multistate RN licensure by endorsement. In this regard, the

Florida Supreme Court emphasized that "while the burden of producing

evidence may shift between the parties in an application dispute proceeding,

the burden of persuasion remains upon the applicant to prove [his]

entitlement to the license. È The denial È is not a sanction for the

applicant's violation of the statute, but rather the application of a regulatory

measure." Osborne Stern , 670 So. 2d at 934 (footnote omitted).

8 8 . In Osborne St ern , the Court referred to its opinion in Florida Board of

Bar Examiners re R.B.R. , 609 So. 2d 1302 (Fla. 1992), as illustrating the

difference in character between proceedings for licensure as compared to

those for suspension or revocation. The Court expl ained:

In R.B.R. , we concluded

t hat the Board's findings are supported by

competent and substantial evidence and that

such findings in the aggregate are sufficient

to justify nonadmission to the Bar. Although

R.B.R. presented evidence of his success in

13 Respondent's PRO set forth the legal analysis of estoppel, and the undersigned agrees with

that analysis, but it was not shown to be even arguably applicable here.

l aw school and letters of recommendation

from his probation officer, law professors,

and employers, the Board found this

evidence to be insufficient to overcome the

seriousness of R.B.R.'s misconduct and his

continuing lack of candor. We agree.

Osborne St ern , 670 So. 2d at 935 n. 4 (quoting R.B.R. , 609 So. 2d at 1304).

8 9. The same conclusion applies here, to an even greater extent. Unlike

R.B.R., Petitioner made no effort to present evidence to make a showing

sufficient to overcome the Board's evidence of specific violations that called

into question Petitioner's fitness for licensure . Similar to R.B.R., though,

Petitioner's attempt to explain his past violations demonstrated a l ack of

candor that only added to the fitness concerns.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Board of Nursing issue a final order denying the

application of Manuel Fernandez for multistate registered nurse licensure by

endorsement.

D ONE A ND E NTERED this 9th day o f July , 2021 , in Tallahassee, Leon

County, Florida.

S

E LIZABETH W. M CARTHUR

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Heari ngs

this 9th day of July , 2021 .

C OPIES F URNISHED :

Lawrence E. Besser, Esquire Deborah B. Loucks, Esquire

Samek and Besser, P.A. Office of the Attorney General

1200 Brickell Avenue , Suite 1950 The Capitol, Plaza Level - 01

Miami, Florida 33131 Tallahassee, Florida 32399

Marlene Katherine Stern, Esquire Joe Baker, Jr., Executive Director

Office of the Attorney General Board of Nursing

The Capitol, Plaza Level 01 Department of Health

Talla hassee, Florida 32399 4052 Bald Cypress Way , Bin C - 02

Tallahassee, Florida 32399 - 3252

Louise St. Laurent, General Counsel

Department of Health Deborah McKeen, BS, CD - LPN

4052 Bald Cypress Way , Bin C - 65 Board of Nursing

Tallahassee, Florida 32399 Department of Health

4052 Bald Cypress Way , Bin D - 02

Tallahassee, Florida 32399 - 3252

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 th e Final Order in this

case.