Gonzalez-Gomez v. Dep't of Health, 3D11-1840

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SUAREZ
• Parties: Alberto Gonzalez-Gomez, M.D., Appellant, v. Department of Health, Appellee.
• Docket Number: DOH No. 10-8608,No. 3D11-1840,3D11-1840
• Decision Date: 19 December 2012

Alberto Gonzalez-Gomez, M.D., Appellant,
v.
Department of Health, Appellee.

No. 3D11-1840
DOH No. 10-8608

Third District Court of Appeal State of Florida

July Term, A.D. 2012
Opinion filed December 19, 2012

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Florida Board of Medicine.

The Health and Business Law Group and Rafael A. Gaitan and Gus Suarez, for appellant.

Mark Graham Hanson and Wings S. Benton, Assistant General Counsels, Prosecution Services Unit (Tallahassee), for appellee.

Before SUAREZ, ROTHENBERG and SALTER, JJ.

SUAREZ, J.

Page 2

Dr. Alberto Gonzalez-Gomez appeals from a final order of the Board of Medicine revoking his license to practice medicine. We affirm.

Gonzalez-Gomez was convicted, in United States District Court, of conspiracy to commit health care fraud in violation of federal law. He was sentenced to twenty-four months in federal prison, followed by twenty-four months of supervised release, payment of costs and restitution to the Medicare in the amount of $254,469.00. He continued to cooperate with the federal authorities and aid in their ongoing investigation; he did not notify the State Board of Medicine that he had surrendered his license to practice medicine to his parole officer.

The Florida Department of Health subsequently brought a disciplinary action against Gonzalez-Gomez in a three-count Administrative Complaint. Count 1 charged Gonzalez-Gomez with violating section 458.331(1)(c), Florida Statutes (2009), by being convicted of a crime directly relating to the practice of medicine, regardless of adjudication. Counts 2 and 3 charged the defendant with violating section 456.072(1)(x), Florida Statutes (2009), by failing to report the conviction to the Board of Medicine within thirty days and by failing to update practitioner information to reflect a conviction for health care fraud.

Page 3

Gonzalez-Gomez requested an informal hearing before the Florida Board of Medicine ("Board"),¹ in order to attempt to mitigate the penalties. By requesting an informal hearing, as opposed to a formal hearing, Gonzalez-Gomez did not dispute the allegations of fact contained in the Administrative Complaint. Both parties were represented by counsel at the administrative hearing. Gonzalez-Gomez argued that the Board should follow its own precedent in similar factual cases and mitigate the penalty. The prosecuting attorney recommended the only disciplinary rule that applied, i.e., revocation and fine pursuant to Florida Administrative Code Rule 64B8-001(2)(c)1. Pursuant to that rule, the Board revoked Gonzales-Gomez's medical license and imposed a $10,000 fine.

Gonzalez-Gomez argues on appeal that the Board erred by disregarding its own precedents when...