IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DENISE MELISSA NOT FINAL UNTIL TIME EXPIRES TO
CAMPBELL, L.P.N., FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D16-2291
v.
DEPARTMENT OF HEALTH,
Appellee.
_____________________________/
Opinion filed December 13, 2017.
An appeal from a Florida Department of Health, Board of Nursing, Final Order.
Luis Antonio Bonilla of Bonilla Law Associates, West Palm Beach, for Appellant.
Katelyn R. Levine, Assistant General Counsel, and Mari H. McCully, Assistant
General Counsel, Florida Department of Health, Tallahassee, for Appellee.
WINSOR, J.
The Department of Health’s Board of Nursing revoked Denise Campbell’s
nursing license, finding she engaged in unprofessional conduct. The Board acted
after concluding that Campbell waived her right to a formal hearing. But because
there are unresolved factual disputes about whether Campbell really did waive that
right, we reverse and remand for further proceedings.
Nurse Campbell worked at a Fort Lauderdale assisted living facility. One of
the facility’s elderly patients was found unresponsive in the dining hall, and Nurse
Campbell ordered staff to place the patient back in his bed to receive CPR. But it
turned out the patient had a “Do Not Resuscitate” order on file, so he never received
CPR or other treatment, and he died later that day. Campbell documented the event,
but she inaccurately reported that the patient had been discovered unresponsive in
his bed—not in the dining hall.
About a year later, the Department filed an administrative complaint, alleging
that Nurse Campbell engaged in unprofessional conduct by (1) inaccurately
recording the event and (2) falsifying or altering the patient’s records. Along with
the complaint, the Department sent Nurse Campbell an election-of-rights form,
which explained that she could dispute the alleged facts and request a formal
administrative hearing. Consistent with Florida Administrative Code Rule 28-
106.111(4), the form said that if Campbell made no election within twenty-one days,
she would waive her right to a formal hearing.
There came to be a dispute about whether Nurse Campbell timely requested a
formal hearing. Campbell’s attorney submitted an affidavit saying he personally
hand delivered a formal-hearing request within the twenty-one days. The
2
Department filed a competing affidavit saying the Board never received any such
request.
The Board was therefore faced with conflicting evidence. But rather than
make an effort to determine what the real facts were, the Board—at the Department’s
request—deemed the formal hearing waived.
The Board ultimately held an informal hearing on the administrative
complaint’s merits. The Board sided with the Department as to whether Nurse
Campbell acted improperly, but it rejected the Department’s recommended penalty
(probation and a fine), opting instead for license revocation. The Board based the
revocation on two aggravating factors: (1) Campbell “documented false information
which led to the death of a patient,” and (2) Campbell “delegated to an unlicensed
person the duty to transfer a non-responsive body to bed.” Campbell now appeals
the Board’s final order, challenging both the Board’s waiver conclusion and the
penalty it imposed.
The first question is what the Board should have done with the conflicting
evidence on whether Nurse Campbell timely requested a formal hearing. We
conclude that the Board should have afforded Nurse Campbell an evidentiary
hearing on that issue. See Arteaga v. State, Dep’t of Bus. & Prof’l Regulation, 54 So.
3d 599 (Fla. 3d DCA 2011) (holding DBPR should have held evidentiary hearing to
resolve dispute about timeliness of election-of-rights filing when appellant had
3
submitted affidavit saying he timely filed); see also Pro Tech Monitoring, Inc. v.
State, Dep’t of Corr., 72 So. 3d 277, 281 n.2 (Fla. 1st DCA 2011) (“Appellant’s
[position] was supported by an affidavit which, at a minimum, raised disputed issues
of fact regarding the timeliness of its bid protest petition . . . . The Department’s
refusal to forward this issue to DOAH was so contrary to the fundamental principles
of administrative law that it constituted a gross abuse of discretion.”); Accardi v.
Dep’t of Envtl. Prot., 824 So. 2d 992, 995 (Fla. 4th DCA 2002) (“[T]he timeliness
of the petition presents a disputed issue of fact that must be resolved below in the
administrative process.”). We therefore reverse and remand. If it is determined after
an evidentiary hearing that Nurse Campbell did not waive her right, the
Department’s final order cannot stand, and the case must proceed to a formal
administrative hearing. If it is determined Nurse Campbell did waive her right, the
Department’s decision to penalize Campbell can stand.
The second question is whether the penalty imposed (revocation) was a
permissible penalty. We must address this issue because the Board could again
impose penalties after further proceedings if it is determined Campbell waived her
right to a formal hearing, or if after a formal hearing she is found guilty. The sole
argument Campbell’s initial brief raises on this point is that the penalty was not
permitted without aggravated-factor findings based on competent, substantial
evidence—findings that Campbell says were lacking here. The problem with this
4
argument is that revocation was within the permissible penalty range with or without
those aggravating factors. Findings of aggravating circumstances are necessary only
when the Board imposes a penalty other than that provided in the Department’s
disciplinary guidelines. § 456.079(3), Fla. Stat. (2015). And while the disciplinary
guidelines do not authorize revocation for a first inaccurate-recording offense, they
do authorize revocation for a first offense for falsifying patient records. Fla. Admin.
Code R. 64B9-8.006(3)(f)(1)-(2). In other words, the disciplinary guidelines
permitted revocation based on one of Nurse Campbell’s charges, even without
aggravating factors. Therefore, we could not reverse the penalty based on the
argument Nurse Campbell presents.
REVERSED and REMANDED.
B.L. THOMAS, C.J., and WINOKUR, J., CONCUR.
5