Mendez v. Florida Dept. of Health
| Decision Date | 01 December 2006 |
| Docket Number | No. 1D05-5926.,1D05-5926. |
| Citation | 943 So.2d 909 |
| Parties | Eduardo S. MENDEZ, M.D., Appellant, v. FLORIDA DEPARTMENT OF HEALTH, Appellee. |
| Court | Florida District Court of Appeals |
Katherine E. Giddings, William M. Furlow and Todd D. Engelhardt of Akerman Senterfitt, Tallahassee, for Appellant.
Dana Baird, Assistant General Counsel, Department of Health, Tallahassee, for Appellee.
Appellant, Eduardo Mendez, M.D., appeals a final order of the Board of Medicine (Board) approving the Administrative Law Judge's (ALJ) recommended order. We affirm the Board's order but write to address one issue raised on appeal, whether the disciplinary penalty imposed by the Board was statutorily authorized.
Appellant pled guilty to conspiring to pay for Medicare patient referrals, in violation of Title 18, United States Code section 371 (2000). Based on Appellant's conviction, the ALJ found that Appellant violated section 458.331(1)(c), Florida Statutes (2002), which provides that "[b]eing convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine" constitutes grounds for disciplinary action by the Board. The ALJ recommended that the Board suspend Appellant's license to practice medicine for nine months and impose a $5,000 fine. The ALJ further recommended that Appellant be placed on probation for two years following his suspension, "subject to such terms of probation as may appear to the Board of Medicine to be necessary and appropriate."
At the final hearing the Board adopted the ALJ's factual findings, conclusions of law, and recommended penalty. The Board explained that the terms of Appellant's probation include practicing only under the direct supervision of a fully licensed physician and a prohibition against dispensing controlled substances during the probationary period.
The Board's imposition of a penalty is reviewed under an abuse of discretion standard. See Dep't of Highway Safety & Motor Vehicles v. Silva, 627 So.2d 612 (Fla. 1st DCA 1993); Grimberg v. Dep't of Prof'l Regulation, Bd. of Med., 542 So.2d 457, 457 (Fla. 3d DCA 1989) ().
Section 456.072(2), Florida Statutes (2002), lists penalties which the Board may impose when a person is found guilty of violating chapter 458, ranging from permanent revocation of a license to issuance of a letter of concern. The penalties include § 456.072(2)(f), Fla. Stat. (2002). When the Board imposes a penalty within the permissible...
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