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

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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, 

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

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submitted affidavit saying he timely filed); see also Pro Tech Monitoring, Inc. v.

State, Dep’t of Corr., 

, 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., 

, 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

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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.




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