DENISE MELISSA 

CAMPBELL, L.P.N.,

Appellant,

v.

DEPARTMENT OF HEALTH,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-2291

_____________________________/

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 
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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, 54 So. 

3d 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., 72 So. 3d 277, 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., 824 So. 2d 992, 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.