CAROL M. BROOKS, APPELLANT,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, APPELLEE
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Carol Brooks, a nurse whose licenses were revoked by the Department of Professional Regulation, appealed the revocation because she was not provided proper notice of the informal hearing she elected. The court reversed and remanded because the Department failed to comply with statutory requirements for notice and opportunity to be heard in an informal proceeding.
The court held that the Department failed to comply with statutory requirements for informal proceedings because it did not provide prior notice of the August 16 hearing to Brooks, thereby depriving her of a meaningful opportunity to present evidence in mitigation as she had requested.
[1] An agency must provide affected persons with reasonable notice of proposed agency action and afford them a meaningful opportunity to present evidence in opposition to the…
[2] An informal hearing under section 120.57(2), Florida Statutes, requires an agency to give affected parties an opportunity to present written or oral evidence in oppositio…
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Join FLexlaw to unlock all legal intelligence“The agency shall, in accordance with its rules of procedure, [gjive affected persons or parties or their counsel an opportunity, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency ... or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction.”
Establishes the statutory requirement for meaningful opportunity to be heard in informal proceedings under section 120.57(2)(a)(2)
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Join FLexlaw to unlock all legal intelligenceBrooks was a licensed practical and registered nurse. On July 12, 1990, she was served with an administrative complaint alleging three violations of t…
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SHIVERS, Chief Judge.
Brooks was a licensed practical and registered nurse. On May 17, 1990, the Department filed an administrative complaint alleging three violations of section 464.-018(1), Florida Statutes (1989), which provides for disciplinary actions under the Nurse Practice Act. On July 12, 1990, Brooks was hand served with the complaint, an explanation of rights, a proposed stipulation, and an Election of Rights form. Brooks wrote a check mark on the Election of Rights form indicating
I do not dispute the allegations of fact in the Administrative Complaint but do wish to be accorded an informal hearing or proceeding, pursuant to section 120.-57(2), Florida Statutes, at which time I will be permitted to submit oral and/or written evidence in mitigation of the complaint to the Board.
She chose the above language instead of the election stating, “I do not dispute the allegations of fact in the Administrative Complaint and waive my right to object or to be heard.” A Board meeting was held on August 16, 1990, and Brooks’ nursing licenses were permanently revoked. Brooks was not represented at the meeting; and she was in prison at the time of the meeting. The record does not indicate the Board knew Brooks was in prison.
Section 120.57(2)(a)(2), Florida Statutes (1987), states that in an informal proceeding
The agency shall, in accordance with its rules of procedure, [gjive affected persons or parties or their counsel an opportunity, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency ... or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction.
Section 120.57(2)(a)(l) “requires that an agency provide affected persons with ‘reasonable notice’ of proposed or completed agency action and afford them a meaningful opportunity to present written or oral evidence in opposition to the contemplated action.” Highsmith v. Department of Professional Regulation, 499 So. 2d 19, 20 (Fla. 1st DCA 1986); see also Scharrer v. Department of Professional Regulation, 536 So. 2d 320 (Fla. 3d DCA 1989) (requiring notice of hearing, which must be at a convenient time and place). Although Brooks was in prison at the time of the hearing, there is no indication in the record that the Department complied with section 120.-57(2)(a) or the provisions of its own Election of Rights form by sending prior notice of the August 16 meeting to Brooks at any address.
We therefore reverse and remand for an informal hearing in compliance with section 120.57(2), Florida Statutes, pursuant to section 120.68(12)(d), Florida Statutes (1987).
WIGGINTON and ZEHMER, JJ., concur.
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Pete v. Dietetics & Nutrition Practice Council, 616 So. 2d 1139 (Fla. 4th DCA 1993)…So. 2d 81, 82 (Fla. 1st DCA), cert. denied, 365 So. 2d 710 (Fla.1978). .Because appellant was not notified of her opportunity to be heard, we reverse the final order and remand for further proceedings. See Brooks v. Dep’t of Professional Regulation, 578 So. 2d 381 (Fla. 1st DCA 1991), and Highsmith v. Dep’t of Professional Regulation, 499 So. 2d 19 (Fla. 1st DCA 1986). In remanding for a hearing, we direct that in making its decision, the Council is to consider the absence of separate billing as only a fact…
Authorities Cited
- Highsmith v. Dep't of Prof'l Reg., 499 So. 2d 19 (Fla. 1st DCA 1986)
- Scharrer v. Dep't of Prof'l Reg., 536 So. 2d 320 (Fla. 3d DCA 1988)