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Court shoots down revocation over board failure to justify punishment harsher than guidelines

The Florida nursing board imposed a disciplinary sanction beyond its own guidelines and failed to explain that deviation, a Florida court found March 27. It reversed a board decision to revoke the license of a nurse who had been convicted of burglary.

(Brewer v. Board of Nursing).

The Florida Board of Nursing initiated a complaint against nurse Donna Brewer after she pleaded no contest to a burglary charge and then failed to report that conviction to the board. The board eventually revoked Brewer’s license permanently and she appealed.

In disciplining Brewer, the board appears to have violated its own disciplinary guidelines. Those guidelines declare that the disciplinary sanctions for a no contest plea to a first-offense burglary charge—such as that pleaded to by Brewer—range from a simple reprimand to a $10,000 fine and a suspension.

The guidelines do allow the board to deviate from that range, but only “upon a showing of aggravating or mitigating circumstances by clear and convincing evidence.” Among the listed circumstances which can authorize such a deviation from the guidelines is “[t]he deterrent effect of the penalty imposed.”

Unfortunately for the board, the court held that it had failed to sufficiently show the existence of an aggravating circumstance that would allow it to increase Brewer’s punishment beyond the normal maximum of a suspension and fine.

At the hearing in which the board addressed Brewer’s case, Judge Jay Harvey III noted that the board had spent just two minutes on the topic before voting on Brewer’s penalty, during which time the board’s legal counsel had simply read the charges, advised the board to find a violation, and then recommended that the board go beyond the disciplinary guidelines and revoke Brewer’s license given “the matter of record,” the fact that “burglary is a serious crime,” and the rationale that license revocations have a deterrent effect. The board then unanimously voted to revoke the license.

“In the present case,” wrote Judge Harvey, “the evidence ‘of record’ upon which the Board relied to find the offense ‘egregious’ and the sanction of revocation a ‘deterrent’ was not just ambiguous, it was nonexistent.”

” . . . There was nothing in the record before the Board, or stated with particularity by the Board in its Final Order, elucidating the circumstances of Brewer’s offense that would render it more egregious than the offense of burglary already contemplated by the rule. Nor did the Board explain how deviating upward to the revocation of Brewer’s license would act to deter her from committing further burglaries any more than would imposing the maximum sanction of a ‘$10,000 fine and suspension’ for a first offense as provided in the Board’s rule.”

“In short,” he concluded. “there was no clear and convincing evidence before the Board to support its departure from the recommended range of sanctions.” The board had thus abused its discretion, the court ruled, overturning the decision to revoke Brewer’s license.