Opinion
No. 90-3197.
June 11, 1992. On Motion for Rehearing and/or Clarification August 12, 1992.
Appeal from the Board of Professional Regulation.
James R. Cunningham, Orlando, for appellant.
Lisa S. Nelson, Dept. of Professional Regulation, Tallahassee, for appellee.
The appellant is a registered nurse who challenges an administrative order by which her license was suspended after a hearing before the Board of Nursing. The appellant did not appear at the hearing, and did not otherwise respond to the complaint against her. However, the appellant's failure to appear or respond does not relieve the appellee of its obligation to substantiate the charges by presenting sufficient evidence. See Florida State Board of Medical Examiners v. James, 175 So.2d 815 (Fla. 3d DCA 1965). The only evidence which the appellee presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action. As indicated in § 120.58(1)(a), Florida Statutes, this evidence was not sufficient in itself to support the Board's findings. See also, Doran v. Department of Health and Rehab. Servs., 558 So.2d 87 (Fla. 1st DCA 1990), and Harris v. Game and Fresh Water Fish Comm'n, 495 So.2d 806 (Fla. 1st DCA 1986). Because there was insufficient evidence to support the findings, pursuant to the cited authorities and § 120.68(10), Florida Statutes, the suspension of the appellant's license must be set aside. The challenged order is therefore reversed.
BOOTH and BARFIELD, JJ., concur.
ON MOTION FOR REHEARING AND/OR CLARIFICATION
The appellee's motion for rehearing is denied. Except as indicated below, the motion for clarification is also denied.
Our opinion in this case does not mandate the procedure which the appellee should follow in the future with regard to either this or other actions, beyond the necessity of presenting appropriate evidence in the circumstances here involved. The opinion does not compel the appellee to pursue a section 120.57(1), Florida Statutes, hearing in such circumstances. In connection with the appellee's citation to Hime v. Florida Real Estate Commission, 61 So.2d 182 (Fla. 1952), for purposes of default, we direct the appellee's attention to State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). See also, Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985).
BOOTH and BARFIELD, JJ., concur.