FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Department of Health, Board of Nursing
Jonathan Edward Rose, of Jonathan Rose, P.A., Orlando, for
Young Hodges, Chief Appellate Counsel, Florida Department of
Health Prosecution Services Unit, Tallahassee, for Appellee.
Garrison appeals from an order imposing a two-year suspension
of his nursing license, a fine, and a reprimand following an
informal hearing pursuant to section 120.57(2), Florida
Statutes (2015). We affirm.
is a registered nurse. In 2015, he pleaded nolo contendere to
aggravated battery with a deadly weapon and misdemeanor
battery; the underlying allegations related to his
involvement in a road rage incident involving a minor.
Garrison was sentenced to probation for those offenses.
self-reported his plea to the Department of Health
("Department"), Board of Nursing
("Board"). The Department filed a two-count
administrative complaint pursuant to sections
464.018(1)(d)(5) and 456.072(1)(c), Florida Statutes (2015).
The complaint listed the statutory violations for the
underlying convictions and alleged that
the charges arose "from a road rage incident involving a
case was set for an informal hearing at which Garrison
appeared pro se. Garrison had filed an election of rights
form and did not dispute the material facts set forth in the
complaint. See § 120.57(2), Fla. Stat. (2015).
At the outset of the hearing, the Department presented an
investigative report to the Board and entered it into
evidence without objection. The report included a copy of
Garrison's arrest affidavit for the 2015 incidents.
During the hearing, the Board considered the arrest affidavit
as well as Garrison's version of the events. A member of
the Board expressed concern that Garrison's version was
inconsistent with the arrest report. The Board thereafter
imposed the two-year suspension, which reflected an increase
over the recommended penalty. The Board's final order adopted the
findings of fact set forth in the administrative complaint.
argues that the Board fundamentally erred in considering the
arrest affidavit. Generally, an administrative board may not
consider matters not contained in the complaint. See,
e.g., Gonzalez v. Dep't of Health, 120
So.3d 234, 237 (Fla. 1st DCA 2013). In this case, the
complaint set forth the statutory violations on which
Garrison's penalty was based and indicated that the
charges stemmed from a road rage incident. The arrest
affidavit, which expanded on those charges, was entered into
evidence without objection. Therefore, we find no error in
the Board's consideration of the arrest affidavit given
that it came into evidence without objection and dealt with a
matter contained in the complaint.
also argues that the Board erred in failing to reconvene for
a formal hearing once it became apparent that there were
disputed issues of material fact regarding the nature of the
incident leading to the charges set forth in the
administrative complaint. However, Garrison did not request a
formal hearing, either initially or when he thought an issue
of material fact arose at the informal hearing; thus, this
issue was not preserved for appeal. See Stueber v.
Gallagher, 812 So.2d 454, 457 (Fla. 5th DCA 2002)
("[W]hen a party at an informal hearing does not request
that the informal hearing be terminated in lieu of a formal
hearing, the party waives the right to receive a formal
hearing."); cf. Gonzalez, 120 So.3d at 237
(finding that appellant's failure to request formal
hearing once it became apparent that disputed issues of
material fact existed precluded appellate argument that the
board was required to terminate and reconvene for such
these reasons, we affirm.