Summary of Opinion: Michael N. Hernicz v. State of Florida, Department of Professional Regulation, Board of Nursing

Factual and Procedural Background

Appellant Michael N. Hernicz, an advanced registered nurse practitioner, had his nursing license suspended by the Board of Nursing for treating patients without a physician's supervision. At the administrative hearing a hearing officer issued a recommended order dismissing the charges. The Board issued a final order that (a) accepted the hearing officer's findings of fact, and (b) stated "additional findings of fact" that appellant had examined and treated two named individuals (prescribing medication in one case) without "specific authorization from a licensed physician to perform such treatment. . . ." Hernicz appealed, raising four points; the court addressed the point concerning whether the Board rejected or modified the hearing officer's findings and whether the Board's "additional" finding was improper.

Legal Issues Presented

Whether the Board of Nursing rejected or modified the hearing officer's findings of fact in violation of § 120.57(1)(b)(9), Florida Statutes (1979).
Whether the Board's statement that appellant acted without "specific authorization from a licensed physician" was an improper additional finding of fact rather than a conclusion of law.

Arguments of the Parties

Appellant's Arguments

Appellant argued the Board impermissibly rejected or modified the hearing officer's proposed findings of fact in violation of § 120.57(1)(b)(9), which forbids an agency from rejecting or modifying findings of fact unless, after review of the complete record, it states with particularity that the findings were not based on competent substantial evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sapp v. Florida State Board of Nursing, 384 So.2d 254 (Fla.2d DCA 1980)	That a conclusion of law improperly placed in findings of fact does not become a finding of fact merely by placement.	The court relied on Sapp to treat the Board's statement about lack of authorization as a conclusion of law (despite its placement in findings-of-fact) and thereby rejected the contention that the Board had improperly modified factual findings.

Court's Reasoning and Analysis

The court observed that the recommended order quoted the Administrative Complaint, which alleged appellant had treated the two patients (providing medication in one instance and a type of therapy in the other), and that the hearing officer expressly stated the "facts surrounding the allegations in the Administrative Complaint filed herein are not in dispute." Because the hearing officer found the underlying facts to be undisputed, the Board in its final order could "spell out exactly what those facts were" without rejecting or modifying the hearing officer's findings. The court further analyzed the Board's statement that appellant acted without "specific authorization from a licensed physician" and concluded this statement was a conclusion of law rather than an additional factual finding; although placement of that conclusion within the findings-of-fact section was arguably inappropriate, misplacement did not convert the conclusion into a factual rejection of the hearing officer's findings. The court cited Sapp v. Florida State Board of Nursing to support that principle. Finding competent, substantial evidence supported the Board's conclusion, the court affirmed the order.

Holding and Implications

HOLDING: The order appealed is AFFIRMED.

Implications: The court affirmed the Board's final order on the basis that (1) the hearing officer had found the facts undisputed, allowing the Board to restate those facts, and (2) the Board's statement about lack of physician authorization was a conclusion of law (not an improper modification of factual findings). The opinion does not announce any new legal precedent beyond applying existing principles to these facts.

Opinion per curiam; ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.

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MICHAEL N. HERNICZ, APPELLANT, v. STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF NURSING, APPELLEE.

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 Hernicz 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(1)(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.

HERNICZ v. ST., DEPT. OF PROFESSIONAL