Kimberley McQueary v. Florida Department of Health, State of Florida Board of Nursing

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D21-0837

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KIMBERLEY MCQUEARY,

Appellant,

v.

FLORIDA DEPARTMENT OF

HEALTH, STATE OF FLORIDA

BOARD OF NURSING,

Appellee.

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

Deborah McKeen, Chair.

September 21, 2022

PER CURIAM.

Appellant challenges a final order by Florida Board of Nursing

(“the Board”) revoking her state nursing license.

In 2017, the Louisiana Board of Nursing suspended

Appellant’s Louisiana nursing license for violating patient

confidentiality. * In 2018, the Florida Department of Health (“the

Department”) filed a complaint and an amended complaint against

Appellant, alleging that she violated section 464.018(1)(b), Florida

Statutes (2017), by having her license to practice nursing

* The facts are not in dispute.

suspended in Louisiana. After an informal hearing, which

Appellant did not attend, the Board issued its final order

permanently revoking Appellant’s license to practice as a

registered nurse. The order cited Appellant’s violation of a

patient’s confidentiality as an aggravating factor. The Department

did not charge the violation as an aggravating factor.

Appellant argues she was denied due process when the

Department failed to notify her of the allegation of a violation of

patient confidentiality. We agree.

Each practice board must adopt “disciplinary guidelines

applicable to each ground for disciplinary action which may be

imposed by the board . . . .” § 456.079(1), Fla. Stat. These

guidelines “provide reasonable and meaningful notice to the public

of likely penalties which may be imposed for proscribed conduct

. . . .” § 456.079(2), Fla. Stat. To impose a penalty above a guideline

for a particular violation, a board must make a “specific finding in

the final order of . . . aggravating circumstances.” § 456.079(3),

Fla. Stat. The board must “adopt by rule disciplinary guidelines to

designate possible mitigating and aggravating circumstances and

the variation and range of penalties permitted for such

circumstances.” Id.

One act that can be a basis for disciplinary action is having a

license to practice nursing revoked or suspended “by the licensing

authority of another state . . . .” § 464.018(1)(b), Fla. Stat. (2017).

At the time that Appellant’s license was suspended in Louisiana,

the applicable disciplinary guideline for this offense was a “letter

of concern” at the low end and the “same penalty as penalty

imposed in other jurisdiction” at the high end. Fla. Admin. Code R.

64B9-8.006(3)(b) (2017).

Another basis for disciplinary action is “unprofessional

conduct, as defined by board rule.” § 464.018(1)(h), Fla. Stat.

(2016). The Board of Nursing defined “unprofessional conduct” to

include “[v]iolating the confidentiality of information or knowledge

concerning a patient.” Fla. Admin. Code R. 64B9-8.005(7) (2014).

The disciplinary guideline in effect at the time of the Appellant’s

offending conduct set the low end at a reprimand, a $250 fine, and

continuing education; the high end was set at a $500 fine and

probation. Fla. Admin. Code R. 64B9-8.006(3)(f)3. (2012). In 2020,

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several years after Appellant’s offending conduct and her

suspension, the Board changed the maximum penalty for this type

of unprofessional conduct to revocation. Id. R. 64B9-8.006(3)(f)2.

(2020).

The Board adopted the following non-exhaustive list of

circumstances “which may be considered for purposes of mitigation

or aggravation of penalty”:

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.

Fla. Admin. Code R. 64B9-8.006(5)(b) (2012). By the Board’s own

rules, it “shall be entitled to deviate from the foregoing guidelines

upon a showing of aggravating . . . circumstances by clear and

convincing evidence, presented to the Board prior to the imposition

of a final penalty at informal hearing.” Id. R. 64B9-8.006(5)(a)

(emphasis added).

Appellant asked for a formal hearing in the Division of

Administrative Hearings. At the Department’s suggestion that

there were no facts in dispute, the Administrative Law Judge

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(“ALJ”) relinquished jurisdiction to the Board for an informal

hearing. In the relinquishment order, the ALJ tellingly observed:

Whether the facts that [McQueary] wants to dispute

are material in this proceeding depends on the factual

allegations in the Amended Complaint. The framework

and scope of this proceeding is set by the Amended

Complaint. Just as [the Department] could not attempt

to discipline [McQueary] in this proceeding based on

additional facts not alleged in the Amended Complaint or

additional violations not charged in the Amended

Complaint, so too [McQueary] cannot inject in this

proceeding any factual matters that are not within the

framework of the allegations and charges in the Amended

Complaint.

(second emphasis supplied).

The amended administrative complaint charged Appellant

with violating only section 464.018(1)(b), based on her license

having been suspended in Louisiana. After the ALJ’s

relinquishment, the Department moved the Board for an informal

hearing with no material facts in dispute. The Department prayed

that the Board “enter a Final Order imposing whatever discipline

upon [McQueary’s] license that the Board deems appropriate” but

only “after allowing [McQueary] the opportunity to present oral

and/or written evidence in mitigation of the Administrative

Complaint” (emphasis added). Meanwhile, the Department

informed Appellant prior to the hearing that the facts alleged in

the complaint were uncontested and that she could not contest

them at the informal hearing. The Department told Appellant that

she would be limited “to legal argument, if any, and to matters in

mitigation or extenuation.” The notice of hearing that the

Department then sent to her explained, in bold type, that she

would have an “opportunity to address the Board, but

attendance is not mandatory.”

Appellant did not attend the informal hearing. After the

Board adopted the findings and legal conclusions in the amended

administrative complaint, the Department recommended

revocation as a penalty. The Board approved revocation.

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The Board and the Department engaged in a game of bait-

and-switch. The Department provided no notice to Appellant of its

intent to seek revocation, and its communications had the effect of

lulling her into complacency. More egregious than this, there was

no mention in the amended complaint of an alleged violation of

section 464.018(1)(h), pertaining to “unprofessional conduct.” In

essence, though, the Board punished Appellant for this uncharged

violation.

While the list of aggravating factors in Florida Administrative

Code Rule 64B9-8.006(5)(b) is non-exhaustive, the Board cannot

purport to use the violation of an entirely separate basis for

discipline as an aggravator, and then punish based on that

uncharged violation. To allow this approach would be to obviate

the due process requirement of notice before depriving a person of

a property interest. See Rucker v. City of Ocala, 684 So. 2d 836,

840–41 (Fla. 1st DCA 1996) (explaining that a property interest

implicates due process protections, including notice and an

opportunity to be heard). The Department effectively obtained the

Board’s determination of a violation of one statutory provision, and

then sought a penalty under another statutory provision. We note

as well that the Department made no showing by evidence of any

aggravating circumstances. It cannot claim that there are no

disputed issues of fact with respect to the complaint, to avoid a

presentation of evidence in a formal hearing, advise Appellant that

there is nothing to dispute in the amended administrative

complaint, and then rely exclusively on those allegations as “clear

and convincing evidence” of an aggravating factor. The Board’s

own rule requires a separate evidentiary showing during the

penalty phase. Fla. Admin. Code. R. 64B9-8.006(5)(a).

Moreover, the Department did not even rely on the correct

guideline for the uncharged violation, which would have been the

2012 version that set a $500 fine and probation as the maximum

allowable penalty. See Fla. Admin. Code R. 64B9-8.006(3)(f)3.

(2012).

Finally, even if the Board could proceed with the uncharged

violation of section 464.018(1)(h), it still failed to consider the

requirement in section 456.072(3)(b), Florida Statutes (2016),

which states as follows: “[I]f the ground for disciplinary action is

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the first-time violation of a practice act for unprofessional conduct,

as used in [section] 464.018(1)(h) . . . and no actual harm to the

patient occurred, the board . . . shall issue a citation in accordance

with [section] 456.077 and assess a penalty as determined by rule

of the board . . . .” This means that whether there was “actual harm

to the patient” was an issue of fact that should have been

determined by the ALJ.

We set aside the Board’s revocation and remand for further

proceedings, because “[t]he fairness of the proceedings or the

correctness of the action may have been impaired by a material

error in procedure or a failure to follow prescribed procedure.”

§ 120.68(7)(c), Fla. Stat. Put more simply, the Board failed to

afford Appellant the process due to her—including proper notice—

before depriving her of a property interest.

REVERSE and REMAND.

B.L. THOMAS, NORDBY, and TANENBAUM, JJ., 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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Kimberley McQueary, pro se, Appellant.

Sarah Young Hodges, Chief Appellate Counsel of Florida

Department of Health Prosecution Services Unit, Tallahassee, for

Appellee.

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