ALBERTO GONZALEZ-GOMEZ, M.D., APPELLANT,
v.
DEPARTMENT OF HEALTH, APPELLEE

Fla. 3d DCA | 2012-12-19
No. 3D11-1840
Before SUAREZ, ROTHENBERG and SALTER, JJ.
107 So. 3d 1139 Florida District Court of Appeal, Third District (2012) Positive Treatment
Cited by 6 cases

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Holding

The appellate court affirmed the Board of Medicine's revocation of the doctor's license, finding no abuse of discretion in the penalty imposed.


Headnotes

[1] A medical license may be revoked upon conviction of a crime directly relating to the practice of medicine, regardless of adjudication.

[2] Failure to report a conviction for a crime related to healthcare fraud to the Board of Medicine within thirty days constitutes a violation of professional conduct rules.

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Facts & Procedural History

Dr. Gonzalez-Gomez was convicted of conspiracy to commit health care fraud and surrendered his medical license. The Florida Board of Medicine brought …

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Opinion of the Court
SUAREZ, J.

SUAREZ, J.

Dr. Alberto Gonzalez-Gomez appeals from a final order of the Board of Medicine revoking his license to practice medicine. We affirm.

Gonzalez-Gomez was convicted, in United States District Court, of conspiracy to commit health care fraud in violation of federal law. He was sentenced to twenty-four months in federal prison, followed by twenty-four months of supervised release, payment of costs and restitution to the Medicare in the amount of $254,469.00. He continued to cooperate with the federal authorities and aid in their ongoing investigation; he did not notify the State Board of Medicine that he had surrendered his license to practice medicine to his parole officer.

The Florida Department of Health subsequently brought a disciplinary action against Gonzalez-Gomez in a three-count Administrative Complaint. Count 1 charged Gonzalez-Gomez with violating section 458.331(l)(c), Florida Statutes (2009), by being convicted of a crime directly relating to the practice of medicine, regardless of adjudication. Counts 2 and 3 charged the defendant with violating section 456.072(l)(x), Florida Statutes (2009), by failing to report the conviction to the Board of Medicine within thirty days and by failing to update practitioner information to reflect a conviction for health care fraud.

Gonzalez-Gomez requested an informal hearing before the Florida Board of Medicine (“Board”),1 in order to attempt to *1141mitigate the penalties. By requesting an informal hearing, as opposed to a formal hearing, Gonzalez-Gomez did not dispute the allegations of fact contained in the Administrative Complaint. Both parties were represented by counsel at the administrative hearing. Gonzalez-Gomez argued that the Board should follow its own precedent in similar factual cases and mitigate the penalty. The prosecuting attorney recommended the only disciplinary rule that applied, i.e., revocation and fíne pursuant to Florida Administrative Code Rule 64B8-8.001(2)(c)l. Pursuant to that rule, the Board revoked Gonzales-Gomez’s medical license and imposed a $10,000 fine.

Gonzalez-Gomez argues on appeal that the Board erred by disregarding its own precedents when considering mitigation of the penalty. At the hearing, Gonzalez-Gomez presented evidence in mitigation of the penalty, but the only guideline and penalty applicable to the appellee’s offense is that set forth by statute, and that is what the Board concluded was the proper outcome.2 See Fla. Admin. Code R. 64B8-8.001(2)(c)l. Gonzalez-Gomez was convicted of “a crime directly relating to the practice or ability to practice” and “1. Involving a crime related to healthcare fraud in dollar amounts in excess of $5,000.00.” Id. The “first offense” penalty under the Rule is “1. Revocation ... of licensure and a fíne of $10,000.” Id. Gonzalez-Gomez was convicted of fraud in excess of $5,000.00, and thus the penalty for exceeding that threshold is what the Board applied.

The Board’s imposition of a penalty is reviewed under an abuse of discretion standard. Mendez v. Fla. Dep’t of Health, 943 So.2d 909, 910 (Fla. 1st DCA 2006). On review of penalties imposed by an administrative agency, the appellate court must determine whether there are valid reasons in the record in support of the agency’s order. Grimberg v. Dep’t of Prof'l Regulation, Bd. of Med., 542 So.2d 457, 457 (Fla. 3d DCA 1989); see also Fla. Real Estate Comm’n v. Webb, 367 So.2d 201 (Fla.1978). Also, reviewing courts cannot substitute their judgment for that of medical boards, which have great expertise and broad statutory discretion. Dep’t of Prof'l Regulation v. Bernal, 531 So.2d 967 (Fla.1988); see also Aldrete v. Dep’t of Health Bd. of Med., 879 So.2d 1244, 1246-47 (Fla. 1st DCA 2004) (recognizing that imposition of a penalty is a complex task that rests within the sound discretion of the Board); Mendez, 943 So.2d at 911 (“When the Board imposes a penalty within the permissible statutory range, an appellate court has no authority to review the penalty.”); Grimberg, 542 So.2d at 458. We conclude the Board did not abuse its discretion in imposing the penalty it did.

Further, the record clearly shows that Gonzalez-Gomez did not dispute any of the facts established in his federal conviction for Medicare fraud. After consultation with his attorney, he responded to the Board’s Complaint by requesting an informal hearing, and maintained the position throughout the administrative proceedings that there were no disputed issues of fact. At the outset of the administrative hearing, the Board recited that this was an informal hearing at which no disputed issues of fact would be presented. The doctor’s counsel did not object to or dispute *1142this statement. It is undisputed that Gonzalez-Gomez pleaded guilty to Medicare fraud and entered into a plea agreement with the federal authorities that gave him liberal penalty reductions in exchange for his continued cooperation in the ongoing Medicare investigation. No one disputed that he actually cooperated until the case closed. These are not “disputed issues of fact” that can turn an informal hearing into a formal evidentiary hearing. Finally, the Board’s decision not to mitigate the statutory penalty is not an abuse of discretion.3 See Mendez, 943 So.2d at 911; Grimberg, 542 So.2d at 457, 458.

The administrative order under review is affirmed.


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Cited By

  • William Kale, Ph.D. v. Dep't OF Health, 175 So. 3d 815 (Fla. 1st DCA 2015)
    …by an administrative agency] is within the permissible range of statutory law, the appellate court has no authority to review the penalty unless agency findings are in part reversed.’”) (Internal citation omitted); Gonzalez-Gomez v. Dep’t of Health, 107 So. 3d 1139, 1141 (Fla. 3d DCA 2012) (“[Reviewing courts cannot substitute their judgment for that of medical boards, which have great expertise and broad-statutory discretion.”). Chapter 490, Florida Statutes, the Psychological Services Act, is intended to “p…
  • Moran v. Corcoran (Fla. 3d DCA 2021)
    …ate penalty. See, e.g., Cabezas v. Corcoran, 293 So. 3d 602, 604 (Fla. 1st DCA 2020) (affirming permanent revocation of educator’s certificate following informal hearing where penalty was authorized by statute); Gonzalez-Gomez v. Dep’t of Health, 107 So. 3d 1139, 1140–41 (Fla. 3d DCA 2012) (affirming permanent revocation of doctor’s license where the doctor 3 did not dispute any of the facts in the administrative complaint and requested an informal hearing before the Board of Medicine); Decola v. Cas…
  • Safirstein v. Dept. of Health, 271 So. 3d 1178 (Fla. 3d DCA 2019)

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