Loren D. King, II v. Department of Health

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4433
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LOREN D. KING, II,
Appellant,
v.
DEPARTMENT OF HEALTH,
Appellee.
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On appeal from the Board of Nursing.
Joe R. Baker, Jr., Executive Director.
May 6, 2019
OPINION ON MOTION FOR WRITTEN OPINION
B.L. THOMAS, C.J.
We have before us Appellant's motion for written opinion. We
grant Appellant’s motion and, accordingly, withdraw our former
opinion of March 1, 2019, and substitute this opinion in its place.
Appellant, a registered nurse, challenges the Board of
Nursing’s (the “Board”) final order suspending his nursing license.
On April 17, 2017, the Department of Health (the
“Department”) filed an administrative complaint alleging that
Appellant tested positive for marijuana on a confirmed pre-
employment drug screen, that Appellant did not provide a lawful
prescription for marijuana, and that Appellant did not have a
legitimate medical reason for using marijuana.
Appellant opted for an informal hearing on the administrative
complaint conducted pursuant to section 120.57(2), Florida
Statutes, stating that he did not dispute the allegations of material
fact in the complaint.
At the hearing before the Board, Appellant stated that “I got
a marijuana card coming,” and counsel for the Department noted
that in October 2015, the time of Appellant’s drug screen, medical
marijuana was not available in Florida, and did not become
available until August 2016. At the hearing, Appellant stated, “It’s
my fault. I did something illegal and I’m sorry for it.”
On September 21, 2017, the Board issued a final order
adopting the findings of fact set forth in the administrative
complaint and suspending Appellant’s nursing license until he
undergoes evaluation coordinated by the Intervention Project for
Nurses (“IPN”) and complies with any terms and conditions
imposed by IPN.
“[A] reviewing court may set aside agency action only when it
finds that the action is dependent on findings of fact that are not
supported by substantial competent evidence in the record,
material errors in procedure, incorrect interpretations of law, or
an abuse of discretion.” Henderson v. Dep’t of Health, Bd. of
Nursing, 954 So. 2d 77, 81 (Fla. 5th DCA 2007) (quoting Malave v.
Dep't of Health, Bd. of Med., 881 So.2d 682, 683 (Fla. 5th DCA
2004)).
Section 456.072(1)(aa), Florida Statutes, provides that
“[t]esting positive for any drug . . . on any confirmed
preemployment or employer-ordered drug screening when the
practitioner does not have a lawful prescription and legitimate
medical reason for using the drug” is grounds for discipline for a
healthcare professional.
Section 456.072(2), Florida Statutes, states that, if a board
finds that a person has violated subsection (1), it may enter an
order suspending the person’s license or restricting the license as
“necessary for the protection of the public health, safety, and
welfare.”
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Appellant did not dispute the facts alleged in the
Department’s administrative complaint, including the allegations
that he “tested positive for marijuana on a confirmed pre-
employment drug screen,” that he “did not provide a lawful
prescription for marijuana” and “did not have a legitimate medical
reason for using marijuana.” At the hearing, and in his initial
brief, Appellant did not contest that marijuana was in his system
during the drug screen. Appellant stated at the hearing that he
would have a “marijuana card” at some point in the future, but
never disputed the Department’s allegation that he did not have a
lawful prescription for marijuana or a legitimate medical reason
for using marijuana at the time of the drug screen.
Competent, substantial evidence, in the form of the
undisputed allegations in the Department’s administrative
complaint, support the finding that Appellant violated section
456.072(1)(aa), Florida Statutes. Section 456.072(2) allows the
suspension imposed on Appellant if a board finds that Appellant
violated section 456.072(1)(aa), Florida Statutes. The Board
correctly interpreted section 456.072 and did not abuse its
discretion in suspending Appellant’s license until he is evaluated
by IPN.
AFFIRMED.
KELSEY and WINOKUR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Loren D. King, II, pro se, Appellant.
Christine E. Lamia, Chief Appellate Counsel, Katelyn R. Boswell,
Assistant General Counsel, Florida Department of Health,
Tallahassee, for Appellee.
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