         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-0438
                 _____________________________

SHEMAKA HALL, L.P.N.,

    Appellant,

    v.

STATE OF FLORIDA, DEPARTMENT
OF HEALTH,

    Appellee.
                 _____________________________


On appeal from the Department of Health.

                          June 28, 2019


LONG, JR., ROBERT E., Associate Judge.

     Shemaka 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.

    On May 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 security cameras.

     The 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.

     Because 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 argument.

    The 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. 1


    1   The written order made no mention of deterrence.
                                 2
     On 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.

     Next 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. 2

     Hall 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


    2   At one point members of the Board inquire of Hall about
her training for dealing with difficult patients. While this
technically is inquiry about something other than the incident
itself, it was clearly intended to probe the allegations at hand and
to specifically address Hall’s behavior during the events alleged
in the complaint.

                                 3
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.

     Last, 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
the video alone is competent and substantial evidence that Hall
presents a danger to the public.

    AFFIRMED.

B.L. THOMAS, C.J., and JAY, J., concur.

                 _____________________________

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


Luis 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.




                                4
