Donna Leah T. Brewer, LPN v. Florida Department of Health, Board of Nursing

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2179

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DONNA LEAH T. BREWER, LPN,

Appellant,

v.

FLORIDA DEPARTMENT OF

HEALTH, BOARD OF NURSING,

Appellee.

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On appeal from a Florida Department of Health, Board of

Nursing, Final Order.

March 28, 2019

JAY, J.

Donna Brewer appeals the Final Order entered by the Florida

Department of Health, State Board of Nursing, permanently

revoking her license as a licensed practical nurse. We reverse.

I

In a two-count administrative complaint, the Department of

Health alleged that Brewer had violated section 464.018(1)(e),

Florida Statutes (2015) (“Title XXXII Regulation of Professions

and Occupations”: “Nursing” – “Disciplinary actions”), by having

(1) entered a plea of nolo contendere to a charge of burglary of an

unoccupied dwelling, an offense listed in section 435.04(2)(z),

Florida Statutes (“Level 2 screening standards”), and (2) by failing

to report the fact of her plea to the Board of Nursing in violation of

section 456.072(1)(x), Florida Statutes (“Grounds for discipline;

penalties; enforcement”). The accompanying Investigative Report

includes Brewer’s judgment and sentencing documents. They

document that adjudication was withheld on the burglary offense

and she was sentenced to ninety days in the county jail. No further

elaboration on the circumstances of the burglary of the unoccupied

dwelling are contained in the report or anywhere else in the record.

II

The entry of a plea of nolo contendere to “any offense

prohibited under s. 435.04” constitutes grounds for disciplinary

action by the Board of Nursing under section 464.018(1)(e). Section

435.04(2)(z) lists burglary in section 810.02, Florida Statutes, as a

qualifying offense. Section 464.018(2) authorizes the Board to

“impose any of the penalties in s. 456.072(2) against any . . .

licensee who is found guilty of violating any provision of subsection

(1) of this section.” In turn, section 456.072(2)(b), Florida Statutes

(2015), empowers the Board to impose a penalty of “suspension or

permanent revocation of a license.”

Section 456.079(1), Florida Statutes, authorized the Board “to

adopt by rule . . . the disciplinary guidelines applicable to each

ground for disciplinary action which may be imposed” by the

Board. In due course, the Board promulgated Florida

Administrative Code Rule 64B9-8.006 (2012)—the version

applicable to the date of Brewer’s alleged violations—setting forth

disciplinary guidelines to be followed by it when sanctioning a

licensed nurse. Pointedly, rule 64B9-8.006(3)(c)1., provides that

the entering of a plea of nolo contendere to burglary subjected

Brewer to a minimum sanction of “reprimand” to a maximum

sanction of a “$10,000 fine and suspension” for a first offense. Then

again, rule 64B9-8.006(5)(a) entitles the Board “to deviate from the

foregoing guidelines upon a showing of aggravating or mitigating

circumstances by clear and convincing evidence, presented to the

Board prior to the imposition of a final penalty at informal

hearing.” (Emphasis added.) Those circumstances include, but

were not limited to, the following:

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1. The danger to the public.

2. Previous disciplinary action against the licensee

in this or any other jurisdiction.

3. The length of time the licensee has practiced.

4. The actual damage, physical or otherwise, caused

by the violation.

5. The deterrent effect of the penalty imposed.

6. Any efforts at rehabilitation.

7. Attempts by the licensee to correct or stop

violations, or refusal by the licensee to correct or stop

violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinary proceedings.

(Emphasis added.)

Clear and convincing evidence is “‘of such weight that it

produces in the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to be

established.’” S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139

So. 3d 869, 872 (Fla. 2014) (quoting Slomowitz v. Walker, 429 So.

2d 797, 800 (Fla. 4th DCA 1983)). The clear and convincing

evidence standard precludes ambiguous evidence. Westinghouse

Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

At an April 6, 2017, hearing—in just over two minutes—the

Board addressed the administrative complaint against Brewer and

voted on the penalty. The assistant attorney general serving as

legal counsel for the Board read the charges in the complaint and

advised the Board to find that they constituted a violation of its

“Practices Act.” A motion was made and seconded, and the vote in

favor of counsel’s advice was unanimous. Counsel then informed

the Board that the Department of Health’s recommended penalty

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was “revocation” and suggested, “given the matter of record, [the

Board] go above the disciplinary guidelines.” (Emphasis added.)

He observed that “burglary is a serious crime,” but before he could

finish his statement, a member of the Board said: “The egregious

nature of the crime.” Another member stated, “So moved.” The

motion was seconded and the vote to accept the reason was

unanimously approved. Another member suggested, “How about

deterrent?” The first board member responded, “Yes, it is also

known as – also as a deterrent effect. So moved.” The motion was

again seconded and the vote in favor was also unanimous. The

hearing ended.

III

Section 120.68(7)(e), Florida Statutes, requires an agency’s

exercise of discretion to be consistent with its rules. “A board’s

imposition of a penalty . . . is reviewed for an abuse of discretion.”

Kale v. Dep’t of Health, 175 So. 3d 815, 817 (Fla. 1st DCA 2015)

(citing to Mendez v. Fla. Dep’t of Health, 943 So. 2d 909, 910 (Fla.

1st DCA 2006)). The standard of review of the agency’s findings of

fact is that of “competent substantial evidence.” § 120.68(7)(b), Fla.

Stat.; see also DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).

In the present case, the evidence “of record” upon which the

Board relied to find the offense “egregious” and the sanction of

revocation a “deterrent” was not just ambiguous, it was

nonexistent. The Board already had in place in its 2012 rule a

range of sanctions for a plea of nolo contendere to burglary. There

was nothing in the record before the Board or stated with

particularity by the Board in its Final Order, elucidating the

circumstances of Brewer’s offense that would render it more

egregious than the offense of burglary already contemplated by the

rule. Nor did the Board explain how deviating upward to the

revocation of Brewer’s license would act to deter her from

committing further burglaries any more than would imposing the

maximum sanction of a “$10,000 fine and suspension” for a first

offense as provided in the Board’s rule. In short, there was no clear

and convincing evidence before the Board to support its departure

from the recommended range of sanctions.

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Accordingly, there being no competent, substantial evidence

in the record to support its decision, we must conclude that the

Board abused its discretion in revoking Brewer’s license.

IV

The Final Order is hereby set aside, and the cause is

remanded to the Board of Nursing for further proceedings

consistent with this opinion. See § 120.68(6)(a)1., Florida Statutes.

B.L. THOMAS, C.J., and BILBREY, J., concur.

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Not final until disposition of any timely and

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

9.331.

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Cynthia A. Mikos and Jamie A. Klapholz of Johnson Pope Bokor

Ruppel & Burns, LLP, Tampa, for Appellant.

Katelyn R. Boswell, Assistant General Counsel, and Christine E.

Lamia, Chief Appellate Counsel of Florida Department of Health,

Tallahassee, for Appellee.

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