OSCAR KLEIN, M.D., APPELLANT,
v.
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that an informal hearing must be terminated and a formal hearing held if disputed issues of fact arise, even during the penalty phase.
[1] An administrative board may not consider acts of alleged misconduct not contained in the administrative complaint when rendering a decision.
[2] If disputed issues of fact arise during an informal administrative hearing, the hearing must be terminated and a formal hearing must be held.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceDr. Klein pleaded guilty to failing to report Medicare fraud and elected an informal hearing. During the hearing, the Board questioned him extensively…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Mitigation Of Penalty cases and more on FLexlaw
BLUE, Judge.
Oscar Klein, M.D. (Klein) appeals an order revoking his license to practice medicine rendered by the Board of Medicine after an informal hearing. Klein contends the informal hearing before the Board of Medicine was flawed because the Board considered numerous acts of alleged misconduct not contained in the administrative complaint and failed to terminate the hearing when it was apparent that there were disputed issues of fact. We agree, reverse the order, and remand for an administrative hearing.
Klein entered a plea of guilty to a federal charge of failure to report Medicare fraud by a third party. The plea was based on a factual stipulation between Klein and the federal prosecutors which established that Klein had become aware of false Medicare billing after the fact and had failed to report the fraud. This guilty plea was the sole charge in the administrative complaint. Klein signed an election of rights, stipulating that there was no dispute concerning the factual allegations in the administrative complaint, and elected an informal hearing, which permitted him to submit evidence in mitigation of the complaint. Klein attended the informal hearing without counsel.
Because of the election of rights, the hearing began with perfunctory motions adopting the findings of the administrative complaint and finding Klein “in violation of Florida Statutes as charged in the administrative complaint.” The Department of Business and Professional Regulation (formerly the Department of Professional Regulation) recommended a penalty consisting of a $5,000.00 fine, two years of probation, and fifty hours of community service for each year of probation. Klein made a brief statement which we assume he perceived as being in mitigation of the complaint. What then ensued was a somewhat confusing and very inquisitorial interrogation by the Board.1
Nearly all the Board members questioned Klein on matters which were not included in the administrative complaint and involved disputed factual issues. In questioning Klein, the Board expressed disbelief at the answers received and impatience with his refusal to agree to their accusations. It is apparent from the record that the Board believed Klein was guilty of infractions more serious than the one charged in the administrative complaint. Klein disputed the Board’s accusations.
It is also clear that the Board voted to revoke Klein’s license to practice medicine based on its belief that Klein had committed infractions not charged and was untruthful. Neither of these grounds provide support for the Board’s action. See Celaya v. Department of Professional Regulation, Board of Medicine, 560 So. 2d 383 (Fla. 3d DCA1990) (Board of Medicine violated physician’s due process right when it questioned him about a matter not alleged in the administrative complaint and revoked his license on the basis of the uncharged allegations); Bernal v. Department of Professional Regulation, Board of Medicine, 517 So. 2d 113 (Fla. 3d DCA1987) (physician’s alleged lack of candor in his testimony on administrative charges would not justify Board of Medicine’s increase of penalty), approved, 531 So. 2d 967 (Fla.1988).
Section 455.225(5), Florida Statutes (1991), provides for a formal hearing before a hearing officer if there are any disputed issues of fact and “[i]f any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held.” We conclude this provision applies to the penalty phase of an informal hearing as well as to questions of guilt. Having determined there were disputed issues of fact during the penalty phase of the informal hearing, we interpret section 455.225(5), Florida Statutes (1991), to entitle Klein to a formal hearing on the penalty issue.
We affirm the findings and conclusions of guilt, but reverse the revocation of Klein’s license to practice medicine and remand for reconsideration of the penalty, with the right to a formal hearing if the facts which form the basis for the penalty continue to be in dispute.
REVERSED AND REMANDED.
PARKER, A.C.J., and ALTENBERND, J., concur. . The Board conducting the hearing was in need of legal guidance concerning due process and the Board’s statutory limitations. Although there were two Department attorneys present, they were unwilling or unable to advise the Board. In fairness to the attorneys, the Board exhibited little self-doubt or receptiveness to advice.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cottrill v. Dep't OF Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996)…strative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint. See Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238 (Fla. 2d DCA 1993). While we base our decision on the Administrative Procedure Act, we are not unaware that both state and federal constitutions require adequate notice before a citizen’s livelihood can be taken away. Hickey v. Wells, 91 So.…
-
Stueber v. Tom Gallagher as Commissioner of Education, 812 So. 2d 454 (Fla. 5th DCA 2002)…essing the appropriate penalty to be imposed at the informal hearing, and not new charges of wrongdoing as Stueber claims. See e. g. Chrysler v. Dep’t of Profl Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Dep’t of Bus. & Profl Regulation, 625 So. 2d 1237 (Fla. 2d DCA 1993); Celaya v. Dep’t of Profl Regulation, 560 So. 2d 383 (Fla. 3rd DCA 1990).…
-
Chrysler v. Dep't of Prof'l Reg., 627 So. 2d 31 (Fla. 1st DCA 1993)…nsidered matters not formally charged in the complaint in imposing Chrysler’s penalty. There are three eases from our sister courts that are factually very similar to the case before us. In Klein v. Department of Business & Professional Regulation, 625 So. 2d 1237, (Fla. 2d DCA 1993), the Second District held that the Board of Medicine erred in two ways: (1) it considered matters not charged in the complaint, and (2) it failed to terminate the informal hearing when it was apparent there were disputed issues o…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dep't OF Prof'l Reg. v. Pedro F. Bernal, M.D., 531 So. 2d 967 (Fla. 1988)
- Deroy Carter v. State, 517 So. 2d 113 (Fla. 3d DCA 1987)
- Pedro F. Bernal, M.D. v. Dep't of Prof'l Reg., 517 So. 2d 113 (Fla. 3d DCA 1987)
- State v. Johnson, 560 So. 2d 383 (Fla. 3d DCA 1990)