MARIE C. CADET v. DEPARTMENT OF HEALTH

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARIE C. CADET,

Appellant,

v.

STATE OF FLORIDA, DEPARTMENT OF HEALTH,

Appellee.

No. 4D17-3431

[October 17, 2018]

Appeal from the State of Florida, Department of Health, Board of

Nursing; Joe R. Baker, Jr., Executive Director; L.T. Case No. 2016-21773

and License No. PN 5155755.

Luis A. Bonilla of Bonilla Law Associates, West Palm Beach, for

appellant.

Christine E. Lamia, Chief Appellate Counsel, Tallahassee, for appellee.

DAMOORGIAN, J.

Appellant, Marie Cadet, appeals a final administrative order from the

Department of Health, Board of Nursing (“the Board”) revoking her nursing

license. Because the undisputed evidence was insufficient to support a

charge warranting revocation as a penalty, we reverse and remand for

further proceedings.

Appellant was a Licensed Practical Nurse (“LPN”) who worked for a

nursing home. Following a medical incident, Appellant was transported

from her home to an emergency room along with her medications as

gathered by paramedics. Upon Appellant’s arrival at the emergency room,

a nurse inventoried Appellant’s medications and noted that they contained

several expired packs of non-narcotic prescriptions in other people’s

names. The emergency room reported this information to the Department

of Health (“DOH”) which commenced an investigation.

As part of its investigation, the DOH interviewed the emergency room

nurse who inventoried Appellant’s medication, the paramedics who

transported Appellant, Appellant’s employer, and Appellant. In her

interview, Appellant admitted that she took expired medications from her

place of employment rather than disposing of them because she could not

always afford her own medications. Based on its investigation, the DOH

filed an administrative complaint against Appellant with the Board alleging

that Appellant was subject to discipline for: 1) engaging in unprofessional

conduct by misappropriating drugs under section 464.018(1)(h) of the

Florida Statutes and Rule 64B9-8.005(2) of the Florida Administrative

Code (Count I), and 2) failing to meet the minimal standards of acceptable

and prevailing nursing practices under section 464.018(1)(n) of the Florida

Statutes (Count II). Specifically, in Count I, the DOH alleged that

Appellant “engaged in acts of misappropriating drugs,” by “removing [the

expired drugs] from” the nursing home where she worked. In Count II, the

DOH alleged that Appellant “failed to meet the minimal standards of

acceptable and prevailing nursing practice” by “failing to return [the

expired drugs] to [the nursing home’s] pharmacy.”

Appellant did not respond to the DOH’s complaint or attend the noticed

hearing in front of the Board. Based on Appellant’s failure to appear, the

DOH’s investigative report and exhibits were admitted into evidence and

the facts set forth in the DOH’s complaint were deemed admitted. The

Board then found that Appellant engaged in unprofessional conduct under

section 464.018(1)(h) and failed to meet the minimal standards of

acceptable and prevailing nursing practices under section 464.018(1)(n).

As a penalty, it revoked Appellant’s nursing license. On appeal, Appellant

argues that the evidence did not support the Board’s legal conclusion that

Appellant failed to meet the minimal standards of nursing practices under

section 464.018(1)(n) of the Florida Statutes as alleged in Count II of the

DOH’s administrative complaint. Therefore, she argues that the Board

violated her due process rights by imposing a higher than permissible

penalty. Based on the governing statutes and regulations, we agree. 1

The Florida Legislature has granted the Board the authority to adopt

rules and implement the provisions of the Nurse Practice Act in order to

ensure that “every nurse practicing in this state meets minimum

requirements for safe practice.” §§ 464.002, .006, Fla. Stat. (2016). To

1 Although Appellant did not appear or make any arguments below, a due

process violation in the administrative law context constitutes fundamental error

which may be raised for the first time on appeal. See Georges v. Dep’t of Health,

75 So. 3d 759, 762 (Fla. 2d DCA 2011); Henderson v. Dep’t of Health, Bd. of

Nursing, 954 So. 2d 77, 81 n.2 (Fla. 5th DCA 2007) (noting that “[m]atters not

excepted to or raised properly before a licensing board may still be raised where

an appellant can show . . . fundamental error”).

2

that end, the Legislature also passed section 464.018, which outlines

certain acts which “constitute grounds for denial of a license or

disciplinary action” in the nursing license context. § 464.018, Fla. Stat.

(2016). Based on the Legislature’s delegation of authority, the Board has

wide discretion in interpreting and enforcing section 464.018. Sullivan v.

Fla. Dep’t of Envtl. Prot., 890 So. 2d 417, 420 (Fla. 1st DCA 2004).

However, this discretion is not unfettered and courts are not required to

defer to implausible and unreasonable interpretations as adopted by an

administrative agency. Id. Further, because disciplinary statutes and

rules are penal in nature, they must be construed strictly with any

ambiguities resolved in favor of the licensee. See State ex rel. Vining v. Fla.

Real Estate Comm’n, 281 So. 2d 487, 491 (Fla. 1973); Bach v. Fla. State

Bd. of Dentistry, 378 So. 2d 34, 36 (Fla. 1st DCA 1980); Lester v. Dep’t of

Prof’l & Occupational Regulations, State Bd. of Med. Exam’rs, 348 So. 2d

923, 925 (Fla. 1st DCA 1977).

Here, based on Count II of the DOH’s complaint, the Board found that

Appellant was subject to discipline under section 464.18(1)(n) of the

Florida Statutes for failing “to meet minimal standards of acceptable and

prevailing nursing practice, including engaging in acts for which the nurse

is not qualified by training or experience.” Although there is no Board rule

establishing what constitutes failing to “meet minimal standards” of

nursing practice, the “practice of practical nursing” is statutorily defined

as:

[T]he performance of selected acts, including the

administration of treatments and medications, in the care of

the ill, injured, or infirm; the promotion of wellness,

maintenance of health, and prevention of illness of others

under the direction of a registered nurse, a licensed physician,

a licensed osteopathic physician, a licensed podiatric

physician, or a licensed dentist; and the teaching of general

principles of health and wellness to the public and to students

other than nursing students. A practical nurse is responsible

and accountable for making decisions that are based upon the

individual’s educational preparation and experience in

nursing.

§ 464.003(19), Fla. Stat. (2016).

In Appellant’s case, nothing about the conduct the DOH alleged and

proved as grounds for Count II had anything to do with the conduct

outlined in the foregoing definition. The DOH did not allege or prove that

Appellant improperly administered or failed to administer drugs, exceeded

3

the scope of her training, or did anything implicating patient care. Rather,

the DOH’s allegation of “failing to return” the drugs established that

Appellant misappropriated the drugs by failing to return expired

medications to her employer’s pharmacy.

The act of “misappropriating drugs” is defined by Board rule as

“unprofessional conduct,” which in turn is grounds for discipline under

section 464.018(1)(h) of the Florida Statutes. Fla. Admin. Code R. Rule

64B9-8.005(2) (2016). Unprofessional conduct by way of misappropriating

drugs was the grounds for discipline alleged in Count I of the DOH’s

complaint. Thus, the grounds for discipline asserted in Count I totally

encompassed the acts Appellant was alleged and proven to have

committed. 2 Barr v. Dep’t of Health, Bd. of Dentistry, 954 So. 2d 668, 668

(Fla. 1st DCA 2007) (holding that a dentist could not be disciplined both

for failing “to meet the minimum standards of performance in diagnosis

and treatment” and for a “records keeping violation” for conduct which was

totally encompassed by the records keeping violation charge).

Based on the governing statutes and rules, the Board’s finding that

Appellant fell below the minimal standards of nursing practices by “failing

to return” expired drugs to her employer’s pharmacy was clearly

erroneous. This error resulted in the revocation of Appellant’s license, a

higher than permissible penalty and, therefore, a violation of Appellant’s

due process rights. Fla. Admin. Code R. 64B9-8.006(3)(f)1. (2016)

(providing that for the first offense of engaging in unprofessional conduct,

the minimum penalty is a “[r]eprimand, $250 fine, and continuing

2 Indeed, the Board’s own rule history reflects that the misappropriation of

drugs does not qualify as grounds for discipline under the failure to meet minimal

standards provision. Prior to 2009, Rule 64B9-8.005 specified some acts that

constituted failure to meet minimal standards of nursing practices, one of which

was the misappropriation of drugs. Fla. Admin. Code R. Rule 64B9-8.005(2)(c)

(2006). However, in 2009, the Board amended the rule by removing any reference

to “failing to meet or departing from minimal standards of acceptable and

prevailing nursing practice” and defined “misappropriating drugs” as

unprofessional conduct instead. Fla. Admin. Code R. Rule 64B9-8.005(2) (2009).

In doing so, the Board specified that the “purpose of the amendment [was] . . . to

eliminate actions that constitution violations of specific provisions of Chapter 464

and Chapter 456.” Vol. 35/08 Fla. Admin. Weekly (Feb. 27, 2009). In other

words, by its own actions, the Board eliminated “misappropriating drugs” as a

violation of the minimal standards provision contained in section 464.018(1)(n).

It is also worth noting that when a misappropriation of drugs was classified as a

standard of care violation, the maximum penalty for a first offense was a fine and

suspension. See Fernandez v. Fla. Dep’t of Health, Bd. of Nursing, 82 So. 3d 1202,

1204 (Fla. 4th DCA 2012).

4

education” and the maximum penalty is a “$500 fine and suspension with

IPN evaluation or probation”). Accordingly, we reverse the Board’s final

order as it pertains to Count II of the DOH’s administrative complaint,

affirm the order as it pertains to Count I, and remand to the Board for

reconsideration of Appellant’s penalty.

Reversed and remanded.

CIKLIN and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

5