MICHAEL N. HERNICZ, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF NURSING, APPELLEE
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An advanced registered nurse practitioner challenged his license suspension by the Florida Board of Nursing for treating patients without physician supervision. The court affirmed the suspension, holding that the Board properly identified undisputed facts from the hearing officer's recommended order and that its statement regarding lack of authorization was a conclusion of law rather than a rejected finding of fact.
The Board did not improperly reject or modify the hearing officer's findings because the facts were undisputed and the Board merely spelled out what those facts were. The Board's statement that appellant acted without authorization was a conclusion of law, not a finding of fact, and was supported by competent substantial evidence.
[1] An agency may not reject or modify findings of fact unless it determines from the complete record that the findings were not based on competent substantial evidence and s…
[2] When a hearing officer finds the facts surrounding allegations in an administrative complaint to be undisputed, the agency may articulate those specific facts in its fina…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“reject or modify the findings of facts unless the agency, first determines from a review of the complete record, and states with particularity in its order, that the findings of fact were not based on competent substantial evidence”
Establishes the statutory requirement under § 120.57(l)(b)(9) for agencies to justify modification of hearing officer findings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Hernicz, an advanced registered nurse practitioner, examined and treated two named individuals without specific authorization from a license…
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PER CURIAM.
Appellant, an advanced registered nurse practitioner, had his license suspended by the Board of Nursing for treating patients without a physician’s supervision. He raises four points in his appeal, only one of which merits discussion.
The hearing officer issued a recommended order that the charges against Her-nicz be dismissed. In its final order, the Board accepted the hearing officer’s findings of fact, then made “additional findings of fact” to the effect that appellant had examined and treated two named individuals (prescribing medication in one of the cases) without “specific authorization from a licensed physician to perform such treatment . . .. ”
The appellant correctly states that § 120.-57(l)(b)(9), Florida Statutes (1979), forbids an agency to “reject or modify the findings of facts unless the agency, first determines from a review of the complete record, and states with particularity in its order, that the findings of fact were not based on competent substantial evidence .... ” Appellant is incorrect, however, in contending the Board rejected or modified the hearing officer’s proposed findings of fact.
The recommended order quotes the Administrative Complaint against Hernicz, which included the allegation that he treated the two patients, providing medication for one and a type of therapy for the other. The hearing officer, after reciting the factual bases for the complaint, states that the “facts surrounding the allegations in the Administrative Complaint filed herein are not in dispute.” Because the hearing officer found the facts to be undisputed, the agency could in its order spell out exactly what those facts were.
Nor was the Board’s statement that appellant acted without authorization an improper “additional” finding of fact, because it was not a finding of fact at all but a conclusion of law. It may have been inappropriate for the Board to make such a conclusion in its findings-of-fact section, but misplacement of a conclusion of law does not metamorphose it into a finding of fact. See Sapp v. Florida State Board of Nursing, 384 So. 2d 254 (Fla.2d DCA 1980).
There being competent, substantial evidence to support the Board’s conclusion, the order appealed is AFFIRMED.
ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.
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MacPHERSON v. Sch. Bd. OF Monroe Cnty., 505 So. 2d 682 (Fla. 3d DCA 1987)…fficer amounted to acts “seriously affecting the health, safety, or welfare of a resident” as required for license revocation by section 400.414(2)(a), Florida Statutes (1983) was conclusion of law); Hernicz v. Department of Professional Regulation, 390 So. 2d 194 (Fla. 1st DCA 1980) (based on undisputed facts administrative agency’s decision that nurse acted without authorization was conclusion of law). Owing a responsibility to both students and teachers, the Board had to weigh its responsibilities and dete…
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Humana, Inc. v. Dep't OF Health & Rehabilitative Servs., 492 So. 2d 388 (Fla. 4th DCA 1986)…y finding of fact that is not supported by competent substantial evidence, see section 120.68(10), Florida Statutes. The agency’s actions in this case are similar to those found permissible in Hernicz v. State, Department of Professional Regulation, 390 So. 2d 194 (Fla. 1st DCA 1980). In that case, a nurse practitioner appealed the suspension of his license by the Board of Nursing for treating patients without a physician’s supervision. The hearing officer had recommended that the charges against the nurse pr…
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Authorities Cited
- Sapp v. Fla. State Bd. OF Nursing, 384 So. 2d 254 (Fla. 2d DCA 1980)