Willner v. Department of Professional Regulation, Bd. of Medicine

Decision Date26 June 1990
Docket NumberNo. 89-2237,89-2237
Citation563 So.2d 805
Parties15 Fla. L. Weekly D1723 Robert E. WILLNER, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE, Appellee.
CourtFlorida District Court of Appeals

Joseph C. Jacobs, Margaret A. McCall, Robert M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Ervin, Tallahassee, for appellant.

Lisa S. Nelson of the Dept. of Professional Regulation, Tallahassee, for appellee.

ALLEN, Judge.

This is an appeal by Robert E. Willner, M.D., from a final order of the Department of Professional Regulation, Board of Medicine, appellee. In its final order, appellee adopted the recommended order of the hearing officer, who had concluded that appellant was guilty of ten violations of Section 458.331(1), Florida Statutes (1981, 1983, & 1985). Appellee imposed a fine in the amount of $50,000 ($5,000 per violation); suspended appellant's medical license for one year; and placed him, upon reinstatement of his license, on two years probation, subject to the special condition that he pay $60,000 to the Department of Legal Affairs, Division of General Legal Services, for use in consumer protection. We find (1) that three of the violations, and the fines therefor, must be set aside, because they were not charged in the administrative complaints filed against appellant; (2) that the penalties for the seven remaining violations were imposed in violation of the ex post facto provisions of the state and federal constitutions; and (3) that the special condition of probation was imposed in violation of Article I, Section 18 of the Florida Constitution. Consequently, we modify the final order to comply with the requirements of law.

First, appellant correctly argues that three of the violations were not charged in the administrative complaints against him. We, therefore, set aside the findings of guilt and the fines for violation of Section 458.331(1)(h), Florida Statutes (1981); Section 458.331(1)(t), Florida Statutes (1981); and Section 458.331(1)(n), Florida Statutes (1983). Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984).

Next, appellant argues that the fines imposed against him are in violation of the ex post facto provisions of the state and federal constitutions. We agree. In 1986, Section 458.331(2)(d), Florida Statutes, was amended to increase the amount of the maximum administrative fine which could be assessed by appellee for violations of Section 458.331(1), Florida Statutes. See Ch. 86-245, § 18, Laws of Fla. The 1986 amendment increased the maximum fine from $1,000 per violation to $5,000 per violation. Since all the violations for which appellant was found guilty occurred prior to the effective date of the 1986 amendment, the maximum fine which could lawfully be imposed by appellee was $1,000 per violation. Florida Patient's Compensation Fund v. Scherer, 558 So.2d 411 (Fla.1990).

Appellant also contends that the special condition of probation requiring him to pay $60,000 to the Department of Legal Affairs for the consumer protection activities of that agency is an unlawful administrative penalty, violative of Section 18 of the Declaration of Rights of the Florida Constitution, which provides that "[n]o administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law." For its...

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    • New Jersey Superior Court – Appellate Division
    • March 24, 1992
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    • Court of Appeal of Florida (US)
    • July 16, 1997
    ...The version of a statute in effect at the time grounds for disciplinary action arise controls. See Willner v. Department of Prof'l Regulation, Bd. of Med., 563 So.2d 805 (Fla. 1st DCA 1990)(holding statutory amendment after violation took place did not authorize larger fine); Department of ......
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    • Court of Appeal of Florida (US)
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  • Smith v. Fla. Dep't of Bus. & Prof'l Regulation
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    • Court of Appeal of Florida (US)
    • December 31, 2015
    ...; Chrysler v. Department of Professional Regulation, 627 So.2d 31 (Fla. 1st DCA 1993) ; Willner v. Department of Professional Regulation, 563 So.2d 805 (Fla. 1st DCA 1990), review denied, 576 So.2d 295 (Fla.1991) ; Celaya v. Department of Professional Regulation, 560 So.2d 383 (Fla. 3d DCA ......
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