Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2945 _____________________________ BURNETT INTERNATIONAL COLLEGE, Appellant, v. STATE OF FLORIDA BOARD OF NURSING, Appellee. _____________________________ On appeal from a Final Order of the Florida Board of Nursing. Kathryn Whitson, Chair. April 14, 2021 PER CURIAM. Burnett International College (Burnett) appeals an order of the State of Florida Board of Nursing (The Board) terminating its nursing program. Burnett argues that the Board denied it due process by failing to conduct a formal hearing prior to terminating its program and by not providing the necessary notice. We disagree and affirm the order on appeal. The Board took action against Burnett after its program failed to meet the statutorily required passage rates on the National Council of State Boards of Nursing Licensing Examination (NCLEX). Pursuant to section 464.019(5)(a), Florida Statutes, the passing rate of a nursing program’s graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which the statute specifies is ten points lower than the average passing rate of graduates taking the NCLEX nationally for the first time. The Board served Burnett with a Notice of Intent to Terminate Nursing Education Program, and in response, Burnett filed a petition requesting a formal hearing in the Division of Administrative Hearings (“DOAH”) pursuant to sections 120.569(1) and 120.57(1), Florida Statutes. In the motion, Burnett challenged the passage rates used by the Board, claiming that they were unproven and false and that the Board failed to provide it proper notice of the hearing. The Board denied Burnett’s petition for a formal hearing after determining that the petition failed to identify a disputed issue of material fact. After an informal hearing pursuant to section 120.57(2), Florida Statutes, the Board issued a final order terminating Burnett’s nursing program. It found that Burnett had been placed on probation for the 2017 and 2018 calendar years and failed to achieve the required passage rate for 2018. Specifically, Burnett’s passage rate in 2018 was 11.54% compared to the required passage rate of 75.11%. Burnett first argues that the Board erred in denying its petition for a formal hearing. A person whose substantial interests are affected by the agency’s action is entitled to a formal hearing under section 120.57(1), Florida Statutes, so long as there exists a disputed issue of material fact. See § 120.569(1), Fla. Stat. However, where there are no disputed issues of material fact, the agency need not refer the matter for a formal hearing, even if a party requests one, and may proceed with an informal hearing under section 120.57(2), Florida Statutes. See Schafer v. Dep’t of Bus & Prof’l Regulation, 844 So. 2d 757, 758 (Fla. 1st DCA 2003); Vill. Saloon, Inc. v. Div. of Alcoholic Beverages & Tobacco, Dep’t of Bus. Regulation, 463 So. 2d 278, 285 (Fla. 1st DCA 1984). Here, Burnett argues that the passage rates submitted by the Board created a disputed issue of material fact because the Board failed to submit any information to support its findings. We disagree because the Board is not responsible for calculating the 2 passage rates. Rather, the statute simply requires that the rates calculated by the National Council of State Boards of Nursing (the Council) be utilized. See § 464.019(5)(a)1., Fla. Stat. Indeed, the Board must publish this information on its website, make it searchable, and update it at least quarterly. See § 464.019(4)(c), Fla. Stat. Additionally, Burnett fails to explain how the passage rates used by the Board are incorrect or are contrary to those calculated by the Council. Instead, Burnett’s claims are conclusory and are unsupported by any specific fact or evidence. Its generalized “assertions that disputed issues of material fact exist, do not create disputed issues of material fact.” Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 39 (Fla. 1st DCA 2006). Thus, its claim does not present a disputed issue of material fact. See id. (holding that an agency does not abuse its discretion by refusing to refer a matter to DOAH and instead proceeding informally when a regulated party “fail[s] to cite with specificity any material facts in dispute”). Next, Burnett argues that its due process rights were violated when it was not afforded the opportunity to amend its petition for formal hearing. An agency must “state with particularity its reasons if the petition is not granted.” § 120.569(2)(c), Fla. Stat.; see City of Winter Park v. Metro. Planning Org. for Orlando Urban Area, 765 So. 2d 797, 798 (Fla. 1st DCA 2000) (reversing order of dismissal because it failed to “provide specific findings, conclusions, and reasons” and failed to explain “why any defects in the petition could not be cured by amendment”). The Board informed Burnett that its petition was denied because it failed to identify any disputed issue of material fact. Once a petition for formal hearing is denied, an agency must allow a petitioner, at least once, to timely file an amended petition curing any identified defects, “unless it conclusively appears from the face of the petition that the defect cannot be cured.” § 120.569(2)(c), Fla. Stat. In the instant case, there was no amendment that could identify a disputed issue of material fact because the necessary passage rates are set by law and were disclosed by the Board to show that it was statutorily required to terminate the program. Lastly, Burnett argues its due process rights were further violated as it did not receive proper notice. Due process requires that a person with substantial interests being determined by an 3 agency must be given notice sufficient to provide a clear point of entry. Cf. §§ 120.569, 120.57, Fla. Stat.; see Capeletti Bros., Inc. v. State, Dept. of Transp., 362 So. 2d 346, 348 (Fla. 1st DCA 1978). The Notice of Intent to Terminate Nursing Education Program as well as the Notice of Hearing, both provided to Burnett, satisfy this notice requirement. Specifically, the Notice informed Burnett of its right to a hearing and the legal authority and jurisdiction under which the hearing would be held. See § 120.569(2)(b), Fla. Stat. In fact, Burnett does not challenge the adequacy of these notices; rather, it addresses a notice of a free-form proceeding the Board intended to hold. Burnett’s argument that the Notice is void because the same language was not used when referring to the passage rates at issue is also without merit, given that the Board clearly cited and quoted the relevant statute, which left no question as to what passage rates to which the Board was referring. Thus, Burnett received the required notice, and its due process rights were not violated. AFFIRMED. KELSEY, M.K. THOMAS, and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Gregory Ochalek of Gregory M. Ochalek, P.L.L.C, Miami Gardens, for Appellant. Ashley Moody, Attorney General, and Marlene K. Stern, Assistant Attorney General, Tallahassee, for Appellee. 4