Rupp v. Department of Health
| Citation | 963 So.2d 790 |
| Decision Date | 18 July 2007 |
| Docket Number | No. 3D06-1769.,3D06-1769. |
| Parties | Corliss A. RUPP, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee. |
| Court | Court of Appeal of Florida (US) |
Hicks & Kneale, and Brett C. Powell, Miami; Michael R. Barnes, Key West, for appellant.
Philip Monte, Tallahassee, for appellee.
Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
Dr. Corliss A. Rupp, M.D. appeals to this Court the Florida Department of Health, Board of Medicine's Order, which imposed certain penalties on Dr. Rupp for her failure to report timely an administrative disciplinary action taken against her in the State of Virginia. We reverse, finding that the Board's punishment is inappropriate because it punishes Dr. Rupp for failing to do something which the Order itself admits was impossible to do. Moreover, we find that the Board erred in adopting the findings and recommendations of the Administrative Law Judge's erroneous Recommended Order, without allowing Dr. Rupp the opportunity to be heard.
Dr. Rupp has twenty years experience as a medical doctor and is a practicing psychiatrist with an unblemished record. When the subject events took place, Dr. Rupp was a sole practitioner providing psychiatric care to the poor of the Florida Keys. Before moving her practice there, Dr. Rupp worked with a company providing her services on a temporary basis, which required her to become licensed in a number of states, including Virginia, Georgia and Florida. She contracted with an Atlanta-based firm, Daniel and Yeager, which was responsible for ensuring that Dr. Rupp's medical licenses remained current. Among Daniel and Yeager's responsibilities was to notify the various states in which Dr. Rupp was licensed of Dr. Rupp's address changes.
In March 2003, Dr. Rupp moved to Florida and subsequently advised the State of her change of address in April 2003. Dr. Rupp also requested that Daniel and Yeager notify the State of Virginia of this address change. However, Daniel and Yeager failed to notify the State of Virginia of Dr. Rupp's change in address. In early 2004, Daniel and Yeager closed their Atlanta office without notifying Dr. Rupp. As of July 9, 2004, Dr. Rupp's official address on file with the Virginia Board of Medicine was 8010 Roswell Road, Suite 320, Atlanta, Georgia, 30350, which was the address of the defunct Daniel and Yeager firm.
Dr. Rupp subsequently learned that the Virginia Board of Medicine charged and convicted her in absentia of violating Virginia's statutory requirement to advise the Virginia Board of Medicine within thirty days of any address change. In its August 18, 2004 Order, the Virginia Board of Medicine concluded that Dr. Rupp failed to provide the required notification and ordered her to pay a $1,500.00 monetary penalty. Because the Virginia Board of Medicine continued to use the Daniel and Yeager address in trying to contact Dr. Rupp, Dr. Rupp was not notified of the Virginia disciplinary action until almost two months after its conclusion.
On October 11, 2004, Dr. Rupp received a letter in a plain envelope at her Florida address. The letter, dated September 22, 2004, and addressed to Dr. Rupp at the Atlanta address, was from the Virginia Compliance Unit of the Department of Health Professions referring to the Virginia Final Order. This was the first time Dr. Rupp became aware of the Virginia disciplinary action. Dr. Rupp physically did not receive notice of the disciplinary action taken against her until almost two months after the order was entered. She provided notice to Florida's Department of Health within thirty days of the date that she received notice from Virginia.
On November 2, 2004, the Florida Board of Medicine advised Dr. Rupp that the Board was initiating an investigation into her failure to notify the Board of the Virginia disciplinary action. Dr. Rupp attended a hearing before the Administrative Law Judge to answer the Florida Board of Medicine's complaint. After the Judge entered its Recommended Order, Dr. Rupp filed a timely Response. The Response did not contain any exceptions to the Judge's findings of facts or conclusions of law, but contained legal arguments challenging the propriety of the Judge's recommended disciplinary action.
The Board held a hearing on June 2, 2006, supposedly to conduct the Board's de novo review of the record and Recommended Order in Dr. Rupp's case. Pursuant to the Board's conclusion that Dr. Rupp's Response was an exception rather than a pleading, the Board refused to allow Dr. Rupp or her counsel to address the Board regarding the propriety of the Judge's recommendations.
The Board adopted the Judge's findings of fact. The Judge's Recommended Order specifically states in paragraph 20:
20. Dr. Rupp physically did not receive notice of disciplinary action taken against her until almost two months after the order was entered. Therefore, she could not have notified the Department within 30 days of the date the order was entered. She did provide notice to the Department within 30 days of the date that she received notice from Virginia.
On June 19, 2006, the Board issued its Final Order imposing a $500 administrative fine against Dr. Rupp. It further stated that a letter of concern would be issued to Dr. Rupp by the Board, and it imposed $10,118.19 in costs to be paid by Dr. Rupp within one year from the date of the Final Order. This appeal followed.
With regard to the standard of review, this Court reviews a lower court's interpretation of a statute de novo. See Romine v. Fla. Birth Related Neurological Injury Comp. Ass'n., 842 So.2d 148 (Fla. 5th DCA 2003). Furthermore, an agency abuses its discretion when it ignores findings of fact based upon competent substantial evidence. See Strickland v. Florida A & M Univ., 799 So.2d 276, 277 (Fla. 1st DCA 2001).
First, Dr. Rupp contends on appeal that the Judge's Recommended Order is invalid because it imposes sanctions on her for failure to take actions that the Order acknowledges were impossible to perform. We are in complete agreement with Dr. Rupp on this issue.
Florida law is clear that the law does not impose penalties upon an individual for failing to take certain actions which it is physically impossible for that individual to take. See Shevin v. Int'l Inventors, Inc., 353 So.2d 89, 93 (Fla.1977)(invalidating regulatory statute due to its "substantial impossibility of compliance"); Ford v. State, 801 So.2d 318, 321 (Fla. 1st DCA 2001)("[R]equiring the state to prove which crime caused a defendant to flee `would place upon the State an impossible burden to prove that one charged with multiple violations of the law fled solely because of his consciousness that he committed one particular crime.'"); Aspen-Tarpon Springs Ltd. v. Stuart, 635 So.2d 61, 67-8 (Fla. 1st DCA 1994)( that regulatory scheme constituted an unconstitutional taking because it prohibits landowners' use of their property unless the landowner satisfies impossible requirements); Freeman v. Freeman, 615 So.2d 225, 226 (Fla. 5th DCA 1993)( ); Indian Trail Homeowners Ass'n., Inc. v. Roberts, 577 So.2d 998, 999 (Fla. 4th DCA 1991)(". . . a party cannot be required to do the impossible."); Abbey Park Homeowners Ass'n. v. Bowen, 508 So.2d 554, 555 (Fla. 4th DCA 1987)( order granting injunction because "Abbey Park does not have the ability to comply with the injunction, and therefore, the injunction is improper."); Ivaran Lines, Inc. v. Waicman, 461 So.2d 123, 125 (Fla. 3d DCA 1984) ().
Here, the Judge's Recommended Order is incorrect because it seeks to impose liability upon Dr. Rupp for not doing what was impossible for her to do. The Recommended Order specifically finds that Dr. Rupp should be punished for failing to do that which the Judge's own Recommended Order specifically acknowledges could not be done. The Recommended Order thus seeks to punish Dr. Rupp for non-compliance with the notification requirements of section 458.331(1)(kk), Florida Statutes, despite the fact that Dr. Rupp was physically unable to comply with these requirements. It simply defies logic that Dr. Rupp's noncompliance with the notice requirements would not be excused when she did not know, nor could she have known, that the Virginia action had taken place.
Second, Dr. Rupp contends that the Board erred in failing to conduct a de novo review of the Judge's recommended order. Dr. Rupp is correct that the Board was required to conduct a de novo review of the record in this case which, by...
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