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

• Decision Date: 08 March 2013
• Docket Number: No. 3D11–1840.,3D11–1840.
• Parties: Alberto GONZALEZ–GOMEZ, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
• Court: Florida District Court of Appeals

107 So.3d 1139

Alberto GONZALEZ–GOMEZ, M.D., Appellant,

v.DEPARTMENT OF HEALTH, Appellee.

No. 3D11–1840.

District Court of Appeal of Florida,

Third District.

Dec. 19, 2012.

Rehearing Denied March 8, 2013.

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

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.

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 64B8–8.001(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 considering mitigation of the penalty. At the hearing, Gonzalez–Gomez presented evidence in mitigation of the penalty, but the only guideline and penalty applicable to the appellee's offense is that set forth by statute, and that is what the Board concluded was the proper outcome.²SeeFla. Admin. Code R. 64B8–8.001(2)(c)1. Gonzalez–Gomez was convicted of “a crime directly relating to the practice or ability to practice” and “1. Involving a crime related to healthcare fraud in dollar amounts in excess of $5,000.00.” Id. The “first offense” penalty under the Rule is “1. Revocation ... of licensure and a fine of $10,000.” Id. Gonzalez–Gomez was convicted of fraud in excess of $5,000.00, and thus the penalty for exceeding that threshold is what the Board applied.

The Board's imposition of a penalty is reviewed under an abuse of discretion standard. Mendez v. Fla. Dep't of Health, 943 So.2d 909, 910 (Fla. 1st DCA 2006). On review of penalties imposed by an administrative agency, the appellate court must determine whether there are valid reasons in the record in support of the agency's order. Grimberg v. Dep't of Prof'l Regulation, Bd. of Med., 542 So.2d 457, 457 (Fla. 3d DCA 1989); see also Fla. Real Estate Comm'n v. Webb, 367 So.2d 201 (Fla.1978). Also, reviewing courts cannot substitute their judgment for that of medical boards, which have great expertise and broad statutory discretion. Dep't of Prof'l Regulation v. Bernal, 531 So.2d 967 (Fla.1988); see also Aldrete v. Dep't of Health Bd. of Med., 879 So.2d 1244, 1246–47 (Fla. 1st DCA 2004) (recognizing that imposition of a penalty is a complex task that rests within the sound discretion of the Board); Mendez, 943 So.2d at 911 (“When the Board imposes a penalty within the permissible statutory range, an appellate court has no authority to review the penalty.”); Grimberg, 542 So.2d at 458....