final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Department of Health.
A. Bonilla, West Palm Beach, for Appellant.
Christine E. Lamia, Chief Appellate Counsel, Sarah Young
Hodges, Chief Appellate Counsel, and Katelyn R. Boswell,
Assistant General Counsel, Florida Department of Health,
Prosecution Services Unit, Tallahassee, for Appellee.
Jr., Robert E., Associate Judge.
Hall appeals the permanent revocation of her license as a
practical nurse by the Department of Health, Board of
Nursing, in its final administrative order after an informal
hearing. Because we find no ground under section 120.68(7),
Florida Statutes for setting aside the final administrative
order, we affirm.
26, 2016, Hall was working as a licensed practical nurse at a
healthcare facility in Pahokee, Florida. Hall had a dispute
with a patient at approximately 11:30 p.m. During this
dispute, the patient threw water on Hall's face. As the
patient was walking away, Hall got up and chased her out of
the room, grabbed her by the hair, and dragged her by the
hair across the floor. Hall was then separated from the
patient and restrained by other staff members. After being
separated and restrained, Hall tried to attack the patient a
second time. The incident was captured on the facility's
Department filed an administrative complaint which alleged
that on May 26, 2016, while employed as a licensed practical
nurse, Hall "used force and/or struck" a patient.
The complaint alleged this amounted to "unprofessional
conduct," as defined by rule 64B9-8.005(13), Florida
Administrative Code, and the conduct was grounds for
disciplinary action against Hall by the Board pursuant to
section 464.018(1)(h), Florida Statutes (2015). The complaint
requested the Board permanently revoke or suspend Hall's
license, impose other penalties, or order "other
relief" the Board may deem appropriate.
Hall did not dispute the facts alleged, the parties proceeded
to an informal hearing before the Board. §§
120.569(1), 120.57(2), Fla. Stat. (2016). The hearing began
with motions for the Board to accept the Department's
investigative report and the video of the incident into
evidence and to accept the facts as alleged in the
administrative complaint. Both motions were seconded and
adopted. Hall then testified, providing context for the
incident and mitigation for the undisputed facts. Hall
explained the patient had been difficult to deal with, had
demanded medications she could not provide, and had thrown
water on her. Hall's counsel then made a similar
Department then requested the Board adopt the conclusions of
law set forth in the complaint. The Board unanimously agreed.
The Board also unanimously found the undisputed facts
sufficient to meet two aggravating factors identified in the
rule - that Hall was a "danger to the public" and a
"deterrent effect" was necessary. Fla. Admin. Code
R. 64B9-8.006(5)(b)1., (5)(b)5. The Board voted unanimously
to permanently revoke Hall's license. In its written
order, the Board reiterated its adoption of the facts and
conclusions of law as alleged in the administrative complaint
and found the aggravating factor that Hall presented a danger
to the public.
appeal, Hall first argues that revocation of her license was
improper because section 456.072(3)(b) limits the penalty for
a single violation of section 464.018(1)(h) to a
non-disciplinary citation. However, section 456.072(3)(b)
provides for the penalty of "a citation . . .
and . . . a penalty as determined by
rule." (emphasis added). The penalty of revocation
was "as determined by rule" 64B9-8.006(5)(a),
Florida Administrative Code. The Board made no error here.
Hall argues the Board considered matters outside the
administrative complaint in finding Hall presented a danger
to the public. We disagree. The investigative report and the
video admitted into evidence address only the single incident
alleged in the complaint. At no time during the hearing did
the Board delve into circumstances outside the incident
alleged in the administrative complaint.
was expressly noticed that these circumstances would be
considered because the complaint identified the incident and
stated that she "us[ed] force against and/or
struck" a patient. Hall was also expressly noticed of
the penalty sought by the Department. The complaint clearly
stated the Department was seeking permanent revocation, among
other options. The available sanctions, and the Board
findings necessary to impose them, are set forth in the
statute and applicable rule. Revocation of Hall's license
was an available sanction if the Board found an aggravating
circumstance. Fla. Admin. Code R. 64B9-8.006(3)(f)3. and
64B9-8.006(5)(a). The Department is not required to restate
the law in its complaint. Rather, the Department must notice
Hall of the factual allegations against her. The Board then
makes findings, including potential aggravators, when
fashioning an appropriate sanction. Hall argues she was
disciplined for an "offense not charged in the
complaint," Trevisani v. Dep't of Health,
908 So.2d 1108, 1109 (Fla. 1st DCA 2005), but being a danger
to the public is not an offense - it is an aggravating
circumstance fairly considered when deciding on an
appropriate penalty. Because only the facts noticed in the
complaint were used in considering aggravators, the
Board's action was not based on matters outside the scope
of the complaint.
Hall argues there was no competent and substantial evidence
to find she was a danger to the public. We find there was.
The video of the incident shows Hall violently attacking a
patient under her care and having to be restrained by her
colleagues. The Department also presented other evidence, but