Opinion

Carr v. Department of Health, Board of Nursing

Court
District Court of Appeal of Florida
Filed
Jul 30, 2025
Status
Published
Cited by
0 cases

The opinion

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2024-0459

_____________________________

KAREN LEE CARR, R.N.,

Appellant,

v.

DEPARTMENT OF HEALTH, BOARD

OF NURSING,

Appellee.

_____________________________

On appeal from the Department of Health, Board of Nursing.

Joe R. Baker, Jr., Executive Director.

July 30, 2025

WINOKUR, J.

On December 8, 2023, the Board of Nursing suspended Karen

Lee Carr’s nursing license. Carr challenged the disciplinary action

with the Department of Health before the Board’s final hearing,

but the Department barred her because she had waived her rights

by failing to file a timely petition. The Department’s rejection

hinged on its purported denial of Carr’s motion for an extension of

time under Florida Administrative Code Rule 28-106.111(3). We

agree with Carr that the Department failed to properly address the

motion, and we set aside the Board’s final order suspending Carr.

I

Carr is a registered nurse in Broward County. Around

December 2022, she reported to her employer that she injected

fentanyl and Dilaudid while at work. Carr self-reported to the

Intervention Project for Nurses (IPN), a non-governmental

organization that helps nurses with substance abuse and mental

health issues. In January 2023, Carr enrolled in an IPN substance

abuse program. But in April 2023, Carr stopped complying with

the program. IPN reported Carr’s failure to complete the program

to the Department, which then filed an administrative complaint

with the Board to suspend Carr’s nursing license under section

120.60(5), Florida Statutes.

The administrative complaint was served on Carr on July 13,

2023. On August 2, 2023, Carr hired counsel to represent her in

the administrative proceeding. The next day, when Carr’s response

to the complaint was due, counsel emailed the Department asking

for its position on an extension of fifteen days to respond to the

complaint. The Department’s counsel objected to the requested

extension, stating that the Department had a “policy” not to

provide extensions beyond the twenty-one-day deadline provided

in the administrative rule. Carr’s counsel nonetheless filed a

motion for an extension of time with the agency clerk that same

day, and later, on August 25, 2023, Carr petitioned for a formal

hearing before an administrative law judge (ALJ) with the

Division of Administrative Hearings.

But before Carr filed her petition, the Department filed a

memorandum with the Board explaining the reason for Carr’s

license suspension, and after, on November 13, 2023, the

Department filed a Motion for Determination of Waiver and for

Final Order after an informal hearing. The Department argued

that it denied Carr’s motion for extension of time, and thus, Carr’s

petition for a formal hearing was untimely.

The Department issued notices of hearing, and the Board held

a hearing on December 8, 2023, where neither Carr nor her counsel

were present. The Board considered the complaint uncontested

and issued a final order in January 2024 suspending Carr’s

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nursing license. Carr moved to vacate the final order, which the

Board eventually denied.

II

Carr raises two issues on appeal, but our resolution of the

issue relating to the Board’s finding that Carr waived her right to

challenge the suspension obviates the need to address the other

issue. We review the Board’s legal conclusions de novo, and

whether its findings of fact are supported by competent,

substantial evidence. See § 120.68(7), Fla. Stat.; see also Cabrera

v. Agency for Health Care Admin., 315 So. 3d 140, 142 (Fla. 1st

DCA 2021) (citations omitted).

The Board suspended Carr after a final hearing where the

Board accepted, and adopted, the Department’s suggestion that

Carr waived her rights to a formal hearing with an ALJ. The

conclusion of the Board and the Department that Carr’s request

was untimely is erroneous, so we must set aside the final order and

remand for the petition to be considered. See generally §§ 120.569,

120.68(6), (7), Fla. Stat.; see also Fla. Admin. Code R. 28-106.201(3)

(“Upon receipt of a petition involving disputed issues of material

fact, the agency shall grant or deny the petition[.]”).

Carr is a nurse, which requires a license in Florida; thus, any

disputes relating to her license are governed by section 120.60,

Florida Statutes, which read in part as follows:

No revocation, suspension, annulment, or withdrawal of

any license is lawful unless, prior to the entry of a final

order, the agency has served, by personal service or

certified mail, an administrative complaint which affords

reasonable notice to the licensee of facts or conduct which

warrant the intended action and unless the licensee has

been given an adequate opportunity to request a

proceeding pursuant to ss. 120.569 and 120.57.

§ 120.60(5), Fla. Stat. This appeal turns on whether Carr was

“given adequate opportunity to request a proceeding pursuant to

ss. 120.569 and 120.57.”

3

When seeking a formal hearing under section 120.569, an

aggrieved person must be provided notice—just like in section

120.60(5)—and an opportunity to respond to that notice with a

request for a formal hearing. See § 120.569(2)(b), Fla. Stat. The

minimum time for an aggrieved person to seek such a request is

fourteen days. That can be expanded, however, and it was here.

By rule, an aggrieved person has twenty-one days to file such

a request under section 120.569(2). See Fla. Admin. Code R. 28-

106.111(2). But the twenty-one-day deadline is not absolute. Rule

28-106.111(3) provides a way to extend that deadline:

An agency may, for good cause shown, grant a request for

an extension of time for filing an initial [petition].

Requests for extension of time must be filed with the

agency prior to the applicable deadline. Such requests for

extensions of time shall contain a certificate that the

moving party has consulted with all other parties, if any,

concerning the extension and that the agency and any

other parties agree to or oppose the extension. A timely

request for extension of time shall toll the running of the

time period for filing a petition until the request is acted

upon.

Fla. Admin. Code R. 28-106.111(3).

Carr’s petition was due on August 3, 2023; thus, any motion

for an extension of time had to be filed by that date. See id. Carr

filed her motion with the Department’s Clerk at 4:38 pm on August

3, 2023. Carr asserts the motion was never ruled on and thus her

petition was timely, while the Department argues its counsel

denied the motion when Carr was informed there was an agency

policy not to extend the twenty-one-day period. We disagree with

the Department’s position that an agency attorney can deny a

motion for extension of time simply by objecting to it when asked

for its position pursuant to the rule. Nor is there any record

evidence that the Department or the Board denied Carr’s timely

motion for an extension of time.

Indeed, the Department provides only an email thread as

evidence that the motion was denied. Nothing in the emails shows

4

a denial of Carr’s motion. The pertinent portions are provided

below:

From Carr’s counsel to the Department’s counsel:

From the Department’s counsel to Carr’s counsel:

From Carr’s counsel to the Department Clerk:

5

From these emails, we see that (1) Carr’s counsel consulted

the Department’s counsel on whether the Department agreed to

the requested extension of time, (2) the Department’s counsel

disagreed with the extension because it had a “policy” not to go

beyond the twenty-one-day rule, (3) the Department’s counsel told

Carr’s counsel that filing the motion with the agency clerk would

not help avoid the deadline, and (4) Carr timely moved for an

extension of time. But at no point did the Department deny Carr’s

motion.

Rather, Carr complied with rule 28-106.111(3), which

required her to certify she consulted all opposing parties and the

Department on their position for a requested extension. See Fla.

Admin. Code R. 28-106.111(3). Thus, Carr’s motion was not denied,

the deadline was tolled, and Carr’s petition for a formal hearing

under section 120.569 was timely.

Further, even if Department counsel’s comments could be

deemed a denial, we agree with Carr that Department counsel was

not authorized to deny her motion altogether. Chapter 28-106 of

the administrative code covers “all proceedings in which the

substantial interests of a party are determined by [an] agency and

shall be construed to secure the just, speedy, and inexpensive

determination of every proceeding. [The] chapter applies to all

proceedings under Chapter 120 except [instances not impacting

this case.]” Fla. Admin. Code R. 28-106.101 (emphasis supplied). It

also defines a “presiding officer” as:

[A]n agency head, or member thereof, who conducts a

hearing or proceeding on behalf of the agency, an

6

administrative law judge assigned by the Division of

Administrative Hearings, or any other person authorized

by law to conduct administrative hearings or proceedings

who is qualified to resolve the legal issues and procedural

questions which may arise.

Fla. Admin. Code R. 28-106.102 (emphasis supplied). Thus,

because rule 28-106.111(3) provides that a motion for extension of

time must be filed with “[a]n agency” and that it is that “agency”

that may grant said motion for good cause, it follows that only a

“presiding officer” of that agency may pass on such a motion. See

Fla. Admin. Code R. 28-106.102, 28-106.111(3).

Additionally, rule 28-106.204 provides that “[a]ll requests for

relief shall be by motion. All motions shall be in writing unless

made on the record during a hearing . . . . The original written

motion shall be filed with the presiding officer.” Fla. Admin. Code

R. 28-106.204(1) (emphasis supplied). It also states that “[m]otions

for extension of time shall be filed prior to the expiration of the

deadline sought to be extended and shall state good cause for the

request.” Id. at (4). Reading rule 28-106.204 and 28-106.111

together, we conclude that a “presiding officer,” or another

designated by said “presiding officer” or rule, is the only individual

who may pass on a motion for extension of time under chapter 28-

106. Thus, Carr’s motion under rule 28-106.111(3), which was to

be filed with the “agency,” had to be ruled on by the “presiding

officer.”

Given that nothing in the record shows that the Department’s

counsel was a “presiding officer,” that such an officer delegated

that authority to him, or that a rule providing for an agency’s

counsel to pass on such motions exists, Carr’s motion for an

extension of time was not properly disposed of by the Department.

Accordingly, the time for Carr to file her petition for a formal

hearing was tolled, and her petition was timely.

III

The Department failed to properly dispose of Carr’s motion for

an extension of time under Florida Administrative Code Rule 28-

106.111(3). The Board’s final order suspending Carr’s nursing

7

license is SET ASIDE, and the action REMANDED to the Department

to consider Carr’s petition for a formal hearing under section

120.57, Florida Statutes. See § 120.68(6)(a)1., Fla. Stat.

RAY and KELSEY, JJ., concur.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

John E. Terrel of Howell, Buchan & Strong, Tallahassee, for

Appellant.

Sarah Young Hodges, Chief Appellate Counsel, Florida

Department of Health, Tallahassee, for Appellee.

8

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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