MAURICE HODGE, M.D., APPELLANT/CROSS-APPELLEE,
v.
DEPARTMENT OF PROFESSIONAL REGULATION OF THE STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT, AND THE BOARD OF MEDICAL EXAMINERS OF THE STATE OF FLORIDA, APPELLEE
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The court held that allowing a physician to make a statement before the Board of Medical Examiners determines a penalty is permissible and fair, and that the Board's findings on most counts were supported by substantial evidence.
[1] An administrative board may allow a professional to make a statement in mitigation or denial before determining the penalty for a violation, even if not explicitly forbid…
[2] An appellate court may remand a case to an administrative board for reconsideration of a penalty when some, but not all, of the original charges are reversed.
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Join FLexlaw to unlock all legal intelligenceDr. Hodge appealed a final order from the Board of Medical Examiners finding violations of the Medical Practice Act and Florida Comprehensive Drug Abu…
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SHARP, Judge.
Dr. Hodge appeals the Board of •Medical Examiner’s final order, which determined he violated provisions of the Medical Practice Act1 and the Florida Comprehensive Drug Abuse Prevention and Control Act.2 The Department of Professional Regulation had filed a twenty-nine count complaint against Dr. Hodge. The hearing officer concluded there was sufficient substantial evidence to establish violations of twenty-two of the counts, and the Board .adopted these findings.3 After a careful review of the record, we agree except as to two counts which dealt with diversion of drugs to Mrs. Hodge.4 The other charges were sufficiently serious to merit the action that the Board took and the penalty it imposed,5 but in view of our reversal of two counts, we remand this matter to the Board so that it may reconsider its choice of penalty, if it elects to do so.
The attorney representing the appel-lees filed a cross-appeal on behalf of the Department of Professional Regulation urging that the Board erred because it allowed Dr. Hodge to address it prior to determining his penalty.6 The hearing examiner had recommended that Dr. Hodge’s medical license be permanently revoked, but the Board suspended his license for three months and imposed a five year probationary status upon reinstatement. Prior to announcing its penalty, a member of the Board asked Dr. Hodge to make a statement. He denied the charges and sought to mitigate them. He had not testified at the hearing before the hearing examiner. We find no merit in the Department’s cross-appeal. Section 120.57(l)(b)(5), Florida Statutes (1981), clearly defines what the record is in an administrative proceeding of this nature. It would indeed be improper for the Board to consider new evidence or testimony regarding its acceptance or rejection of the hearing officer’s findings of fact.7 But in this case, the Board fully adopted those findings. Section 120.-57(l)(b)(9), Florida Statutes (1981), allows the Board, based on the special knowledge of the members of the profession involved, to accept or reduce the recommended penalty. See Erwin v. State of Florida Department of Professional and Occupational Regulation, 320 So. 2d 2 (2d DCA 1975), cert. denied, 334 So. 2d 605 (Fla.1976). The penalty imposed in this ease was within the limits of the applicable statute.8
We see nothing amiss in the Board’s allowing Dr. Hodge to make a statement prior to announcing its determination of the appropriate penalty to be imposed. Section 120.57, Florida Statutes (1981), does not ex pressly forbid this practice, and it strikes us as basically fair and just. A convicted criminal has long been allowed to speak on his own behalf, in mitigation and denial, before sentence is imposed. Although this is not a criminal procedure, the loss of a professional license is a sufficiently serious loss to an individual to justify affording him similar consideration and fair treatment.
Accordingly, we affirm the order appealed, deny the cross-appeal, and remand this cause to the Board so that it may reconsider the penalty imposed. We further award Dr. Hodge an attorney fee for defending the cross-appeal pursuant to section 57.105, Florida Statutes (1981), and we direct the Board to set an appropriate fee.
AFFIRMED AND REMANDED.
ORFINGER, C.J., and COWART, J., concur. . §§ 893.01-893.15, Fla.Stat. (1981).
. § 120.57(l)(b)(9), Fla.Stat. (1981).
. The hearing officer found Hodge guilty in two of the three counts dealing with this matter. However, we find no evidence to support his finding that Dr. Hodge knew of or participated in the diversion of drugs to his wife.
. § 120.68(10), Fla.Stat. (1981).'
. At the oral argument of this case we inquired which of the two clients — the Board or the Department — appellee/cross-appellant’s attorney was representing. With considerable embarrassment, counsel admitted the two positions in this case were necessarily adverse. This conflict of interest should be avoided by retaining separate counsel to handle any cross-appeal adverse to the other appellee.
. Department of Transp. v. J.W.C. Co., Inc. (Fla. 1st DCA 1981).
. § 458.331(2), Fla.Stat. (1981); § 893.11, Fla. Stat. (1981). See Florida Real Estate Comm’n v. Webb, 367 So. 2d 201 (Fla.1978); School Bd. of Pinellas County v. Noble, 384 So. 2d 205 (Fla. 1st DCA 1980); Sapp v. Florida State Bd. of Nursing, 384 So. 2d 254 (Fla. 2d DCA 1980); Bach v. Florida State Bd. of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1980).
Cases With Similar Vibessemantic neighbors from the corpus
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Daniel J. Clark, M.D. v. Dep't of Prof'l Reg., 463 So. 2d 328 (Fla. 5th DCA 1985)…4. Three months suspension and five years probation for twenty-two counts of violation of the Medical Practice Act and the Comprehensive Drug Abuse Prevention Control Act. Hodge v. Department of Professional Regulation, Board of Medical Examiners, 432 So. 2d 117 (Fla. 5th DCA 1983). 5. Revocation for exploitative sexual relations with a twenty-two year old female patient. Solloway v. Department of Professional Regulation, Board of Medical Examiners, 421 So. 2d 573 (Fla. 3d DCA 1982). Undoubtedly the Board…
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Bert ONG, D.M.D. v. Dep't OF Prof'l Reg. & Fla. State Bd. of Dentistry, 565 So. 2d 1384 (Fla. 5th DCA 1990)…n of the hearing officer’s findings of fact but argues that the Board was free, based on the special knowledge of the members of the profession involved, to accept or reduce the recommended penalty. Appellant relies on Hodge v. Dep’t of Prof. Reg., 432 So. 2d 117 (Fla. 5th DCA 1983) in which this court expressed the view that there was nothing improper in the Board’s allowing the licensee to make a statement to the Board prior to announcing its determination of the appropriate penalty to be imposed. The Hodg…
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Walker v. Bd. OF Prof'l Eng'rs, 946 So. 2d 604 (Fla. 1st DCA 2006)…th certain documents that were not part of the record and were not considered by the ALJ. On appeal, the Board correctly concedes that it was improper for it to have considered evidence outside of the record. See Hodge v. Dep’t of Prof'l Regulation, 432 So. 2d 117, 118 (Fla. 5th DCA 1983).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Real Est. Comm'n & Casimir Szpak v. Webb, 367 So. 2d 201 (Fla. 1978)
- Bach v. Fla. State Bd. OF Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1979)
- Bert F. Erwin, D.D.S. v. State, 320 So. 2d 2 (Fla. 2d DCA 1975)
- The Sch. Bd. OF Pinellas Cnty. v. Walter B. Noble & the State Bd. of Educ., 384 So. 2d 205 (Fla. 1st DCA 1980)
- Sapp v. Fla. State Bd. OF Nursing, 384 So. 2d 254 (Fla. 2d DCA 1980)