## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 17

- 2179

_____________________________

D ONNA L EAH T. B REWER , LPN

,
Appellant,

v.

F LORIDA D EPARTMENT OF H EALTH , B OARD OF N URSING ,
Appellee.

_____________________________

O n appeal from a Florida Department of Health, Board of Nursing, Final Order.

March 28, 2019

J AY , 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 ha ving (1) entered a plea of no lo cont endere to a charge of burglary of an unoccupied dwelling, a n offense listed in section 435.04(2)(z), Florida Statutes (“Level 2 screening standards”)

, and (2) by failing2 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; penaltie s; 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 elaboratio n on the circumstances of the burglary of the 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 s ection 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, s ection 456.072(2)(b), Florida Statutes (2015), empowers the Board to impose a penalty of “suspension or permanent revocation of a license.”

S ection 456. 079(1), Florida Statutes, authorize d t he 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 6 4B9

- 8.006 (2012)

— the version applicable to the date of Brewer’s alleged violations

— set ting forth disciplinary guidelines to be followed by it when sanctioning a licensed nurse. Pointedly

, r ule 64B9

- 8.006(3)(c)1.

, provide s that the entering of a plea of no lo contendere to burglary subject ed Brewer to a minimum sanction of “reprimand” to a maximum sanction of a “$10,000 fine and suspension” for a first offense. Then again , r ule 64B9

- 8.006(5)(a) entitle s the Board “ to deviate from the foregoing guidelines upo n a showing of aggravating or mitigating circumstances by clear and convincing evidenc e, presented to the Board prior to the imposition of a final penalty at informal hearing.” (Emphasis added.) Those circumstances include , but were not limited to

, the fol lowing:3 1. The danger to the public.

2. Previous disciplinary action against the licensee in this or any other jurisdiction.

3. The length of time the licensee has practiced.

4. The actual damage, physical or otherwise, caused by the violation.

5. The dete rrent effect of the penalty imposed.

6. Any efforts at rehabilitation.

7. Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinary proceedings.

(Emphasis added.)

Clear and convincing evidence is “‘of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.’” S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla. 2014) (quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). The clear and convincing evidence standard precludes ambiguous evidence. Westinghouse Elec. Corp. v. Shu ler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

At an April 6, 2017, hearing

— in just over two minutes

— the Board addressed t he administrative complaint against Brewer and voted on the penalty

. The a ssistant attorney general serving as legal counsel for the Board read the charges in the complaint and

a dvised the Board to find that they constituted a violation of its “Practices Act.” A motion was made and seconded, and the vote in favor of counsel’s advice was unanimous. Couns el then informed the Board that the Department of Health’s recommended penalty4 was “ revocation ” and suggested

, “ given the matter of record

, [the Board] go above the disciplinary guidelines.” (Emphasis added .) He observed that “burglary is a serious crime,” but before he could finish his statement, a member of the Board said: “The egregious nature of the crime.” Another member stated, “So moved

. ” The motion was seconded and the vote to accept the reason was unanimously approved. Another member suggested, “Ho w about deterrent?” The first board member responded, “Yes, it is also known as

– also as a deterrent effect. So moved.” The motion was again seconded and the vote in favor was also unanimous. The hearing ended.

III

Section 120.68(7)(e), Florida Statutes, requires an agency’s exercise of discretion to be consistent with its rules. “A board’s imposition of a penalty . . . is reviewed for an abuse of discretion.” Kale v. Dep’t of Health , 175 So. 3d 815, 817 (Fla. 1st DCA 2015) (citing to Mendez v. Fla. Dep’t of Health , 943 So. 2d 909, 910 (Fla. 1st DCA 2006)). The standard of review of the agency’s findings of fact is that of “competent substantial evidence.” § 120.68(7) (b) , Fla. Stat.; see also DeGroot v. Sheffield , 95 So. 2d 912, 916 (Fla. 1957).

In the pres ent case, the evidence “of record” upon which the Board relied to find the offense “egregious” and the sanction of revocation a “deterrent” was not just ambiguous, it was nonexistent. The Board already had in place in its 2012 rule a range of sanctions for a plea of nolo contendere to burglary. There was nothing in the record before the Board or stated with particularity by the Board in its Final Order

, e lucidating the circumstances of Brewer’s offense that would render it more egregious than the offense of burglary already contemplated by the rule. Nor did the Board explain how deviating upward to the revocation of Brewer’s license would act to deter her from committing further burglaries any more than would imposing the maximum sanction of a “$10,000 fine and suspension” for a first offense as provided in the Board’s rule

. In short, there was no clear and convincing evidence before the Board to support its departure from the recommended range of sanctions.5 Accordingly, there being no competent, substantial evidence in the record to support its decision , we must conclude that the Board abused its discretion in revoking Brewer’s license

.

IV

T he Final Order is hereby set aside

, and the ca u se is remanded to the Board of Nursing for further proceedings consisten t with this opinion

. See § 120.68(6)(a)1., Florida Statutes.

B.L. T HOMAS , C.J., and B ILBREY , J., concur

.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

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.