82-000754 Jacinth E. Brown vs. Board Of Nursing Status: Closed Recommended Order on Friday, January 7, 1983.

Summary: Where applicant meets statutory criteria for licensure by endorsement, board does not possess discretion to deny application or add criteria on its own.

.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACINTH E. BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 82-754

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF NURSING, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on September 3,

1982, in Miami, Florida.

APPEARANCES

For Petitioner: Alan B. Gest, Esquire

Miami, Florida

For Respondent: Percy W. Mallison, Jr., Esquire

Tallahassee, Florida

Petitioner filed an application for licensure by endorsement as a

registered nurse. Respondent denied her application for the reasons that

Petitioner had twice failed a licensing examination and had practiced nursing

prior to being licensed in Florida. At the formal hearing, Respondent moved to

amend its denial letter to delete the allegation that Petitioner had practiced

nursing without being properly licensed in Florida. Respondent's motion to

amend was granted, and the sole ground for denial therefore became Petitioner's

failure of a licensing examination subsequent to her original licensure.

Accordingly, the issue for determination is whether Petitioner's application for

licensure as a registered nurse by endorsement should be approved.

Petitioner's Composite Exhibits numbered 1 through 5 were admitted in

evidence, and Respondent presented the testimony of Ruth R. Stiehl.

Both parties have submitted post-hearing findings of fact in the form of a

proposed recommended order. To the extent that any proposed findings of fact

have not been adopted in this Recommended Order, they have been rejected as not

having been supported by the evidence, as having been irrelevant to the issue

under consideration herein, or as constituting unsupported argument of counsel

or conclusions of law.

FINDINGS OF FACT

1. Petitioner is currently licensed to practice registered nursing in the

State of New York and has been so licensed since 1969.

2. Petitioner is a graduate of Kingston Public Hospital and Victoria

Jubilee Hospital in Kingston, Jamaica, West Indies, which are registered schools

of nursing.

3. Petitioner was required to and did complete the following requirements

in order to become licensed as a registered nurse in the State of New York:

(a) Successful completion of the Matins

Examination;

(b) Successful completion of a 12-week

course in medical/surgical nursing;

(c) Successful completion of a 12-week

course in psychiatric nursing; and

(d) Successful completion of the New York

Pediatrics Test.

4. Respondent has determined that the successful completion of the

requirements set forth in Paragraph numbered 3 above by applicants licensed in

New York in 1969 is equivalent to or more stringent than the requirements which

existed in Florida at that time, and that those requirements are equal to or

more stringent than the State Board Test Pool Examination.

5. Petitioner sat for the State Board Test Pool Examination in New York on

two occasions but failed to pass the examination.

6. Petitioner has never practiced nursing in the State of Florida without

being properly licensed.

7. Petitioner has been a registered nurse in New York for ten years and

has held positions as staff nurse, head nurse and nurse supervisor. She

practiced nursing in the Veterans Administration Hospital in Miami for

approximately six months. No evidence was introduced to show that Petitioner

has performed her duties in other than a safe and competent manner.

8. The State Board Test Pool Examination is a licensing examination

developed by the National Council of State Boards of Nursing. No evidence was

presented as to the validity of that examination as a measure of testing the

competency of nurses who have been out of nursing school for a number of years

and have continually practiced their profession since graduation.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto. Section 120.57(1), Florida Statutes.

10. The requirements for licensure by endorsement of registered nurses in

the State of Florida are governed by Section 464.009, Florida Statutes, and

Section 210-8.26, Florida Administrative Code. Both the statute and the rule

provide that the Department shall issue a license by endorsement to an applicant

who files the proper application, pays the requisite fee, and meets the

requirements of either of two different methods established for licensure by

endorsement. The first of the two alternate methods requires the applicant to

demonstrate that she holds a valid license to practice nursing in another state

and that the requirements for licensure at the time she secured her license in

her original state of licensure were equivalent to or more stringent than those

which existed in Florida at that time. The second of the two alternate methods

requires an applicant to demonstrate that she meets the qualifications for

licensure by examination and has successfully completed a state, regional or

national examination which is substantially equivalent to or more stringent than

the examination given by the Department. The parties have stipulated that the

requirements for licensure in New York and the examination completed by

Petitioner at the time of Petitioner's licensure in New York were equivalent to

or more stringent than the requirements which existed or the examination given

in Florida at the time.

11. Although Respondent admits that Petitioner has met all the

requirements for licensure by endorsement, Respondent contends that it should be

able to consider available evidence on the issue of whether an applicant is

qualified for licensure and should be able to deny licensure if, in its opinion,

such evidence suggests that the applicant is not qualified to safely practice

nursing. Respondent contends that Petitioner's failure to pass the State Board

Test Pool Examination taken sometime subsequent to her licensure in New York

constitutes such evidence and that the Board is impliedly entitled to deny

licensure on that basis. Respondent's position is not well-founded.

12. Neither the statute nor the rule grant to Respondent any discretion as

to whether licensure will be granted if the requirements of the statute and rule

are met; rather, both the statute and the rule provide that licensure shall be

granted if the requirements set forth therein are met. The parties have

stipulated that the requirements are met, and Petitioner qualifies for licensure

by endorsement under either of the two alternate methods provided. Since

Petitioner was not required to take or pass the State Board Test Pool

Examination, the fact that she took the examination (whether passing or failing

it) cannot be used against her as an additional requirement not provided by

either the rule or the statute. Perhaps the failing of a licensure examination

taken subsequent to original licensure should be a factor to consider in

determining whether an applicant qualifies for licensure by endorsement.

However, since the Legislature has not seen fit to include that in the criteria

for licensure established by statute, Respondent has attempted to arbitrarily

create an additional requirement for licensure after the filing of Petitioner's

application for licensure without authority and without following the procedures

set forth in the Florida Administrative Procedures Act.

13. Respondent had no discretion by statute or rule to deny Petitioner's

application at the time it was made. To the extent that Respondent may have

attempted to establish incipient agency policy regarding the failure of an

examination not required to be taken, Respondent's attempt has fallen short of

its goal. Respondent's position that the State Board Test Pool Examination is a

valid indicator of competency and that failure to pass such an examination is

grounds for denial of licensure is not supported by the testimony produced at

the hearing. Respondent was able to produce evidence reflecting the validity of

the examination with respect to licensure applicants graduating from nursing

school, since recent graduates are the typical examinees. However, the

Respondent produced no evidence reflecting the validity of the examination with

respect to nurses who have been out of school and practicing nursing for a

number of years as is the case with the Petitioner. Even had Respondent been

able through the adjudicative process to establish the record foundation

necessary to support its desired agency action, the additional criterion

Respondent seeks to add to the requirements for licensure by endorsement does

not appear in the Nurse Practice Act, and nowhere in that Act has the

Legislature given to Respondent the discretion to grant or deny licenses to

applicants who meet the statutory qualifications for licensure by endorsement.

Respondent's position that it must have the necessary discretion to reject

applicants who have met the statutory requirements based upon other

considerations in order to protect the public and assure it that only competent

nurses are licensed has much appeal; however, Respondent cannot imply such

discretion when the Legislature has prohibited discretion by enacting a statute

which states that Respondent shall grant a license to someone meeting the

statutory requirements.

RECOMMENDATION

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

RECOMMENDED that a final order be entered granting Petitioner's application

for licensure as a registered nurse by endorsement.

DONE and RECOMMENDED this 7th day of January, 1983, in Tallahassee, Leon

County, Florida.

___________________________________

LINDA M. RIGOT, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of January, 1983.

COPIES FURNISHED:

Alan B. Gest, Esquire

18260 NE 19th Avenue

North Miami Beach, Florida 33162

Percy W. Mallison, Jr., Esquire

Department of Legal Affairs

The Capitol

Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Helen P. Keefe, Executive

Director

Board of Nursing

111 Coastline Drive, East,

Suite 504

Jacksonville, Florida 32202