         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED

THADAEUS NOEL GARRISON,

              Appellant,

 v.                                                     Case No. 5D16-3293

DEPARTMENT OF HEALTH,
BOARD OF NURSING,

           Appellee.
________________________________/

Opinion filed June 23, 2017

Administrative Appeal from
the Department of Health,
Board of Nursing

Jonathan Edward Rose, of Jonathan Rose,
P.A., Orlando, for Appellant.

Sarah Young Hodges, Chief Appellate
Counsel, Florida Department of Health
Prosecution Services Unit, Tallahassee, for
Appellee.

COHEN, C.J.

      Thadaeus Garrison appeals from an order imposing a two-year suspension of his

nursing license, a fine, and a reprimand following an informal hearing pursuant to section

120.57(2), Florida Statutes (2015). We affirm.

      Garrison is a registered nurse. In 2015, he pleaded nolo contendere to aggravated

battery with a deadly weapon and misdemeanor battery; the underlying allegations
related to his involvement in a road rage incident involving a minor. Garrison was

sentenced to probation for those offenses.

       Garrison self-reported his plea to the Department of Health (“Department”), Board

of Nursing (“Board”). The Department filed a two-count administrative complaint pursuant

to sections 464.018(1)(d)(5) and 456.072(1)(c), Florida Statutes (2015). The complaint

listed the statutory violations for the underlying convictions 1 and alleged that the charges

arose “from a road rage incident involving a minor.”

       The case was set for an informal hearing at which Garrison appeared pro se.

Garrison had filed an election of rights form and did not dispute the material facts set forth

in the complaint. See § 120.57(2), Fla. Stat. (2015). At the outset of the hearing, the

Department presented an investigative report to the Board and entered it into evidence

without objection. The report included a copy of Garrison’s arrest affidavit for the 2015

incidents. During the hearing, the Board considered the arrest affidavit as well as

Garrison’s version of the events. A member of the Board expressed concern that

Garrison’s version was inconsistent with the arrest report. The Board thereafter imposed

the two-year suspension, which reflected an increase over the recommended penalty. 2



       1   §§ 784.045(1)(a)2., 784.03, Fla. Stat. (2015).
       2 The initial recommendation was for the payment of costs and a “V2.” V2 discipline
consists of a license suspension until the individual provides the Department with an
Intervention Project for Nurses (“IPN”) evaluation demonstrating the individual’s fitness to
resume practicing as a nurse. We note that in hearings involving disputed issues of fact
under section 120.57(1), Florida Statutes, the Board cannot deviate from the
recommended penalty “without stating with particularity its reasons therefor in the order,
by citing to the record in justifying the action.” However, section 120.57(2) pertaining to
hearings not involving disputed issues of material fact contains no such provision,
implying that this does not apply to hearings involving no disputed issues of material fact.
See § 120.57(2), Fla. Stat.; see also Vicaria v. Dep’t of Health, 715 So. 2d 285, 287 (Fla.
3d DCA 1998).


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The Board’s final order adopted the findings of fact set forth in the administrative

complaint.

       Garrison argues that the Board fundamentally erred in considering the arrest

affidavit. Generally, an administrative board may not consider matters not contained in

the complaint. See, e.g., Gonzalez v. Dep’t of Health, 120 So. 3d 234, 237 (Fla. 1st DCA

2013). In this case, the complaint set forth the statutory violations on which Garrison’s

penalty was based and indicated that the charges stemmed from a road rage incident.

The arrest affidavit, which expanded on those charges, was entered into evidence without

objection. Therefore, we find no error in the Board’s consideration of the arrest affidavit

given that it came into evidence without objection and dealt with a matter contained in the

complaint.

       Garrison also argues that the Board erred in failing to reconvene for a formal

hearing once it became apparent that there were disputed issues of material fact

regarding the nature of the incident leading to the charges set forth in the administrative

complaint. However, Garrison did not request a formal hearing, either initially or when he

thought an issue of material fact arose at the informal hearing; thus, this issue was not

preserved for appeal. See Stueber v. Gallagher, 812 So. 2d 454, 457 (Fla. 5th DCA 2002)

(“[W]hen a party at an informal hearing does not request that the informal hearing be

terminated in lieu of a formal hearing, the party waives the right to receive a formal

hearing.”); cf. Gonzalez, 120 So. 3d at 237 (finding that appellant’s failure to request

formal hearing once it became apparent that disputed issues of material fact existed

precluded appellate argument that the board was required to terminate and reconvene

for such hearing).




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     For these reasons, we affirm.

     AFFIRMED.

WALLIS and LAMBERT, JJ., concur.




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