THADAEUS NOEL GARRISON, APPELLANT,
v.
DEPARTMENT OF HEALTH, BOARD OF NURSING, APPELLEE
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The court held that the Board of Nursing did not err in considering an arrest affidavit admitted without objection and that the appellant waived his right to a formal hearing by failing to request one.
[1] An administrative board may consider matters not contained in the complaint if they are admitted into evidence without objection and relate to a matter within the complai…
[2] A party waives the right to a formal hearing by failing to request its termination in lieu of an informal hearing when disputed issues of material fact arise.
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Join FLexlaw to unlock all legal intelligenceA registered nurse appealed a two-year license suspension, fine, and reprimand imposed by the Board of Nursing following an informal hearing. The disc…
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Thadaeus Garrison appeals from an order imposing a two-year suspension of his nursing license, a fíne, and a reprimand following an informal hearing pursuant to section 120.57(2), Florida Statutes (2015). We affirm.
Garrison is a registered nurse. In 2016, 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 convictions1 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 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 *1280rage 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).
For these reasons, we affirm.
AFFIRMED.
WALLIS and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Stueber v. Tom Gallagher as Commissioner of Education, 812 So. 2d 454 (Fla. 5th DCA 2002)
- Gonzalez v. Dep't OF Health, 120 So. 3d 234 (Fla. 1st DCA 2013)
- Carlos C. Vicaria, M.D. v. The Dep't OF Health, 715 So. 2d 285 (Fla. 3d DCA 1998)