          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2179
                 _____________________________

DONNA LEAH T. BREWER, LPN,

    Appellant,

    v.

FLORIDA DEPARTMENT OF
HEALTH, BOARD OF NURSING,

    Appellee.
                 _____________________________


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

                         March 28, 2019


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 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 when sanctioning a
licensed nurse. Pointedly, rule 64B9-8.006(3)(c)1., provides that
the entering of a plea of nolo contendere to burglary subjected
Brewer to a minimum sanction of “reprimand” to a maximum
sanction of a “$10,000 fine and suspension” for a first offense. Then
again, rule 64B9-8.006(5)(a) entitles the Board “to deviate from the
foregoing guidelines upon a showing of aggravating or mitigating
circumstances by clear and convincing evidence, 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 following:




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         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 deterrent 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. Shuler Bros., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

     At an April 6, 2017, hearing—in just over two minutes—the
Board addressed the administrative complaint against Brewer and
voted on the penalty. The assistant attorney general serving as
legal counsel for the Board read the charges in the complaint and
advised 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. Counsel then informed
the Board that the Department of Health’s recommended penalty

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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, “How 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 present 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, elucidating 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.




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     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

    The Final Order is hereby set aside, and the cause is
remanded to the Board of Nursing for further proceedings
consistent with this opinion. See § 120.68(6)(a)1., Florida Statutes.

B.L. THOMAS, C.J., and BILBREY, 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.




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