Georges v. Department of Health
Georges v. Department of Health
Opinion of the Court
Fedeline Georges appeals a final administrative order entered by the Board of Nursing revoking her certified nursing assistant (C.N.A.) license as a result of a complaint filed by the Department of Health which alleged that Georges stole ten dollars from a patient. Following an administrative hearing, the administrative law judge (ALJ) determined that Georges was guilty of unprofessional conduct and recommended a $250 fine and probation. The Department filed an exception to the recommended penalty and moved to increase it to a revocation of Georges’ license. The Department argued that a revocation was warranted because the Board routinely revokes the licenses of C.N.A.S who have stolen from patients. Ultimately, the Board rejected the ALJ’s recommended penalty, imposed costs of $15,703.17, and permanently revoked Georges’ license.
Because there is competent, substantial evidence in the record to support the ALJ’s determination that Georges stole money from a patient and that she was therefore guilty of unprofessional conduct, we affirm that determination without further comment. But we reverse the revocation of Georges’ license because the
Rule 64B9-15.009 of the Florida Administrative Code sets forth the disciplinary guidelines applicable to C.N.A.S. And rule 64B9-15.009(3)(ii) provides that for a first offense of unprofessional conduct, the minimum recommended penalty is a fine of $50, a reprimand, probation, and continuing education. The maximum recommended penalty is a $150 fíne, a reprimand, and suspension followed by probation.
1. The danger to the public.
2. Previous disciplinary action against the registrant in this or any other jurisdiction.
3. The length of time the registrant 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 registrant to correct or stop violations, or refusal by the registrant to correct or stop violations.
8. Cost of treatment.
9. Financial hardship.
10.Cost of disciplinary proceedings.
Id.
Here, the Department failed to offer evidence of any aggravating factors at the formal hearing. And the ALJ did not independently make any written findings of any aggravating circumstances which were proven by clear and convincing evidence. Even in the Department’s exception to the recommended penalty, the Department failed to enumerate any aggravating circumstances which it sought to prove against Georges. Consequently, the Board did not have any aggravating factors properly before it to justify deviating from the ALJ’s recommended penalty. The Board’s revocation of Georges’ license was not authorized pursuant to rule 64B9-15.009(5)(a), and it constituted a violation of Georges’ due process rights.
Similarly, the Board failed to follow the procedure outlined in section 456.072(4), Florida Statutes (2009), when it imposed costs of $15,703.17 against Georges. While section 456.072(4) permits the Board to impose “costs related to the investigation and prosecution of the case,” the Board is required to “determine the amount of costs to be assessed after its consideration of an affidavit of itemized
The Department argues that Georges waived any right to challenge the penalty and the imposed costs in this case. But the Board improperly aggravated the penalty in violation of the law and the Board’s own rules. The Board also improperly imposed the attorneys’ fees portion of the costs against Georges without a sufficient evidentiary basis to do so. And “[a] denial of due process, if proven, constitutes fundamental error, which may be challenged for the first time on appeal.” Verizon Bus. Network Servs., Inc., ex rel. MCI Commc’ns, Inc. v. Dep’t of Corrections, 988 So.2d 1148, 1151 (Fla. 1st DCA 2008); see also Henderson v. Dep’t of Health, Bd. of Nursing, 954 So.2d 77, 81 n. 2 (Fla. 5th DCA 2007) (noting that “[mjatters not excepted to or raised properly before a licensing board may still be raised where an appellant can show ... fundamental error”).
Accordingly, the decision of the Board is reversed and this case is remanded for the imposition of a penalty which is in conformance with rule 64B9-15.009(3)(ii). Additionally, the imposition of the attorneys’ fees portion of the costs must be stricken.
Reversed and remanded.
. We note that the ALJ's recommended $250 fine exceeded the maximum recommended fine for a first offense as provided in rule 64B9 — 15.009(3)(ii). That discrepancy does not matter to our analysis, however, because the Board exceeded even that recommended penalty when it revoked Georges' license and imposed costs of $15,703.17.
Reference
- Full Case Name
- Fedeline GEORGES, C.N.A. v. DEPARTMENT OF HEALTH, Board of Nursing
- Cited By
- 5 cases
- Status
- Published