Brewer v. Fla. Dep't of Health, 1D17-2179

• Court: Court of Appeal of Florida (US)
• Citation: 268 So.3d 871
• Docket Number: No. 1D17-2179,1D17-2179
• Parties: Donna Leah T. BREWER, LPN, Appellant, v. FLORIDA DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.
• Decision Date: 28 March 2019

268 So.3d 871

Donna Leah T. BREWER, LPN, Appellant,
v.
FLORIDA DEPARTMENT OF HEALTH, BOARD OF NURSING, Appellee.

No. 1D17-2179

District Court of Appeal of Florida, First District.

March 28, 2019
Rehearing Denied May 01, 2019

Cynthia A. Mikos and Jamie A. Klapholz of Johnson Pope Bokor Ruppel & Burns, LLP, Tampa, for Appellant.

Katelyn R. Boswell, Assistant General Counsel, and Christine E. Lamia, Chief Appellate Counsel of Florida Department of Health, Tallahassee, for Appellee.

Jay, J.

Donna Brewer appeals the Final Order entered by the Florida Department of Health, State Board of Nursing, permanently revoking her license as a licensed practical nurse. We reverse.

I

In a two-count administrative complaint, the Department of Health alleged that Brewer had violated section 464.018(1)(e), Florida Statutes (2015) ("Title XXXII Regulation of Professions and Occupations": "Nursing" – "Disciplinary actions"), by having (1) entered a plea of nolo contendere to a charge of burglary of an unoccupied dwelling, an offense listed in section 435.04(2)(z), Florida Statutes ("Level 2 screening standards"), and (2) by failing to report the fact of her plea to the Board of Nursing in violation of section 456.072(1)(x), Florida Statutes ("Grounds for discipline; penalties; enforcement"). The accompanying Investigative Report includes Brewer's judgment and sentencing documents. They document that adjudication was withheld on the burglary offense and she was sentenced to ninety days in the county jail. No further elaboration on the circumstances of the burglary of the

268 So.3d 873

unoccupied dwelling are contained in the report or anywhere else in the record.

II

The entry of a plea of nolo contendere to "any offense prohibited under s. 435.04" constitutes grounds for disciplinary action by the Board of Nursing under section 464.018(1)(e). Section 435.04(2)(z) lists burglary in section 810.02, Florida Statutes, as a qualifying offense. Section 464.018(2) authorizes the Board to "impose any of the penalties in s. 456.072(2) against any ... licensee who is found guilty of violating any provision of subsection (1) of this section." In turn, section 456.072(2)(b), Florida Statutes (2015), empowers the Board to impose a penalty of "suspension or permanent revocation of a license."

Section 456.079(1), Florida Statutes, authorized the Board "to adopt by rule ... the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed" by the Board. In due course, the Board promulgated Florida Administrative Code Rule 64B9-8.006 (2012)—the version applicable to the date of Brewer's alleged violations—setting forth disciplinary guidelines to be followed by it...