FILED IN THE SUPREME COURT OF FLORIDA ^' MAY 2 1 2013 CLERK, SUPREME COURT ALBERTO GONZALEZ-GOMEZ, M.D., BY Petitioner, v. CASE NO.: SC13-612 L.T. NO.: 3D11-1840 FLORIDA DEPARTMENT OF HEALTH, Respondent. ON DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL RESPONDENT'S JURISDICTIONAL ANSWER BRIEF THERESE A. SAVONA Assistant General Counsel Florida Bar No. 0077618 Prosecution Services Unit Florida Department of Health 4052 Bald Cypress Way, Bin #C-65 Tallahassee,, FL 32399-3265 (850) 245-4444 ext. 8106 (850) 245-4662 (fax) therese [email protected]mqa psu [email protected]Counsel for Appellee
Transcript
FILED
IN THE SUPREME COURT OF FLORIDA ^'MAY 2 1 2013
CLERK, SUPREME COURT
ALBERTO GONZALEZ-GOMEZ, M.D., BY
Petitioner,
v. CASE NO.: SC13-612L.T. NO.: 3D11-1840
FLORIDA DEPARTMENT OFHEALTH,
Respondent.
ON DISCRETIONARY REVIEW FROMTHE THIRD DISTRICT COURT OF APPEAL
RESPONDENT'S JURISDICTIONAL ANSWER BRIEF
THERESE A. SAVONAAssistant General CounselFlorida Bar No. 0077618
Prosecution Services UnitFlorida Department of Health4052 Bald Cypress Way, Bin #C-65Tallahassee,, FL 32399-3265(850) 245-4444 ext. 8106(850) 245-4662 (fax)therese [email protected] psu [email protected]
Counsel for Appellee
TABLE OF CONTENTSPAGE (S)
TABLE OF CITATIONS.......................................................................................... ii
I. THIS COURT SHOULD NOT EXERCISE ITSDISCRETIONARY JURISDICTION IN THIS CASE SINCENO DIRECT AND EXPRESS CONFLICT EXISTSBETWEEN GONZALEZ-GOMEZ V DEP'T OF HEALTH, 107SO. 3D 1139 (FLA. 3D DCA 2012) AND SPUZA V. DEP'TOF HEALTH, 838 SO. 2D 676 (FLA. 2D DCA 2003), MIXONV. DEP'T OF STATE, DIV OF LICENSING, 686 SO. 2D 755(FLA. 1ST DCA 1997), AND KLEIN V. DEP'T OF BUS. ANDPROF'L REG., 625 SO. 2D 1237 (FLA. 2D DCA 1993).....................3
A. Jurisdictionalcriteria.................................3
B The Spuza, Mixon, and Klein decisions . . . . . . . . . . . . . . . . . . 4
C. The decision in Gonzalez-Gomez .................................7
D. The Gonzalez-Gomez decision is not in express and directconflict with Spuza, Mixon, and Klein .. ....................... 8
II. THIS COURT CANNOT CONSIDER RETITIONER'SSECOND ARGUMENT AS IT DOES NQT PERTAIN TOTHE DISCRETIONARY JURISDICTION OF THIS COURT...........9
Reaves v. State,485 So. 2d 829 (Fla. 1986)............................................................................... 4, 9
School Bd. ofPinellas County v. District Court ofAppeal,467 So. 2d 985 (Fla. 1984)............................................................................... 4, 9
Fla. R. App. P. 9.030(a)(2)(iv)...................................................................................3
111
PRELIMINARY STATEMENT
Respondent, the Florida Department of Health ("Department"), was the
Appellee in the Third District Court of Appeal and the prosecuting agency below.
Petitioner, Alberto Gonzalez-Gomez, was the Appellant in the Third District Court
of Appeal ("Third District"). Petitioner's Jurisdictional Initial Brief will be
referenced as "PJB" followed by any appropriate page number.
STATEMENT OF THE CASE AND FACTS
The pertinent history and facts are set forth by the attached decision of the Third
District Court of Appeal in Gonzalez-Gomez v. Dep't ofHealth, 107 So. 3d 1139
(Fla. 3d DCA 2013). The Department notes that Petitioner's recitation of the facts
does not accurately describe the facts as they appear in the Third District's opinion
because Petitioner relies on facts not contained in the Tlïird District's opinion.'
Petitioner includes the following facts in his Statement of Facts, all of which arenot in the Third District's opinion:"Upon release from prison, Dr. Gonzalez self-reported his conviction to theDepartment of Health . . . ." (PJB. 1)"In the complaint, the Department sought a range of the penalties to be imposedagainst Dr. Gonzalez including permanent revocation or suspension of his medicallicense; restriction of practice; imposition of an administrative fine; issuance of areprimand; probation; corrective action; refund of fees billed or collected; remedialeducation and/or any other relief that the Board deemed appropriate." (PJB. 1)Petitioner was "interested in settling the case . . . ." (PJB. 1).After an informal hearing was set, Petitioner "requested a continuance of thehearing because he wanted to review additional evidence to present to the Board.
1 . .
SUMMARY OF THE ARGUMENT
The opinions of Spuza, Mixon, and Klein do not conflict with Gonzalez-
Gomez. Contrary to Petitioner's argument, at no point duïing the informal hearing
in front of the Board of Medicine was it clear that Petitioi1er disputed the facts or
that there were disputed issues of fact. Furthermore, Pedtioner relies on facts that
were not part of the Gonzalez-Gomez decision and therefore, cannot be considered
by this Court. Spuza, Mixon, and Klein involved instances where the licensee
specifically requested a formal hearing which was ignored or whereithe reviewing
court found the existence of disputed facts. However, in Petitioner's case, he
requested an informal hearing and maintained the position throughout the
administrative proceedings that there were no disputed issues of fact. Therefore,
no express and direct conflict exists between Gonzalez-Gomez and Spuza, Mixon,
and Klein.
The Board reset the hearing and counsel informed the Board that Dr. Gonzalezwould be attending the hearing and presenting evidence." (PJB. 2).The Board did not provide Petitioner "an opportunity to present any of theunderlying circumstances regarding his conviction (inclu5ling addressing the issueof whether his conviction related to the practice of medicine or warranted thepenalties sought). The Department then shocked Dr. Gänzalez by arguing for thefirst time that the only penalty applicable to the offense he was charged with thatthe Board could consider was permanent revocation of his medical license and a$10,000 fine." (PJB. 2)."The Board imposed the 'Death Penalty' . . . without any [sic] providing anywritten reasons for imposing the harshest penalty possible." (PJB. 3).
2 . 16
ARGUMENT
I. THIS COURT SHOULD NOT ÈXERCISE ITSDISCRETIONARY JURISDICTION IN THIS CASE SINCENO DIRECT AND EXPRESS CONFLICT EXISTSBETWEEN GONZALEZ-GOMEZ V. DEP'T OF HEALTH, 107SO. 3D 1139 (FLA. 3D DCA 2012) AND SPUZA V. DEP'TOF HEALTH, 838 SO. 2D 676 (FLA. 2D DCA 2003), MIXONV. DEP'T OF STATE, DIV. OF LICENSING, 686 SO. 2D 755(FLA. 1ST DCA 1997), AND KLEIN V. DEP'T OF BUS. ANDPROF'L REG., 625 SO. 2D 1237 (FLA. 2D DCA 1993).
A. Jurisdictional criteria
Petitioner asserts that the Third District's decision in Gonzalez-Gomez
directly and expressly conflicts with the cases of Spuza y ep't ofHealth, 838 So.
1970); see Jenkins, 385 So. 2d at 1359 (turning to the dictionary to define
"expressly" as "in an express manner"). Similarly, determining whether holdings
from district courts of appeal are irreconcilable is another avenue for this Court to
exercise its discretionary jurisdiction over a case. Aravena v. Miami-Dade County,
928 So. 2d 1163, 1166 (Fla. 2006).
]L The Spuza, Mixon, and Klein decisions
In Spuza, the Second District addressed whether the Board of Medicine
erred in revoking Spuza's medical license after an informal hearing. Spuza, 838 So.
2d at 677. Spuza was charged by administrative complaint with being convicted of
a crime related "to the practice of medicine or to the ability to practice medicine."
Id. (quoting § 458.331(1)(c), Fla. Stat. (2001)). After receiving the administrative
complaint and an election of rights, o !
Spuza notified the Department that he disputed all material facts in thecomplaint and that he requested a formal hearing. The Agencyresponded that its prosecutor had determined there was no dispute ofmaterial fact because it had a copy of Spuza's conviction. It advisedSpuza that if he had any evidence disputing the facts in the complaint,he should forward that evidence to the Agency within five days of thedate of the letter. If the Agency did not hear from Spuza, it advised itwould forward Spuza's case to the Board of Medicine for an informalhearing. Without waiting for a response from Spuza, the Agencyforwarded his case to the Board for an informal hearing. It also filed amotion for final order, alleging that here were no disputed materialfacts because of the conviction.
Id. at 677-78.
Spuza objected to the informal hearing and submit d a written request with
argument providing grounds for a formal hearing. Id. at 678. However, regardless
of Spuza's objections to the informal hearing, "the Board considered his case at an
informal hearing and revoked his medical license." Id. Additionally, during the
course of the informal hearing, Spuza requested the Board to end the hearing and
"refer the matter for a formal hearing, but the Board refused." Id. On appeal, the
Second District determined that a certified copy of Spuza's conviction "did not, in
itself, establish that the crimes were related to the practice of medicine." Id. The
Second District reversed the order revoking Spuza's license to practice medicine
5
since "Spuza raised questions of law and fact that requirst an evidentiary hearing."
Id.
In Mixon, the issue presented to the First District was whether "the agency
erred in denying [Mixon] a formal administrative hearing." Mixon, 686 So. 2d at
756. There, Mixon elected an informal hearing which resulted in his professional
license being revoked. Id. at 755-56. On appeal, the First District acknowledged
the well-established principle of law that a formal hearing should be held if
material facts are in dispute during an informal hearing. Id. at 756. In reversing
the agency's decision to revoke Mixon's professional license, the First District
stated that the record "clearly reveals the existence of disputed factual issues." Id.
In Klein, the licensee appealed a final order froni the Board of Medicine
which revoked his license to practice as a medical doctor after holding an informal
hearing. Klein, 625 So. 2d at 1238. On appeal, Klein argued that the informal
hearing "as flawed because the Board considered númerous 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." Id. Klein
pled "guilty to a federal charge of failure to report Medicare fraud by a third party"
based on a factual stipulation. Id. After receiving an Èministrat ve complaint
based on this guilty plea, Klein elected an informal hearing. Id.
At the informal hearing,
6
[w]hat then ensued was a somewhat confusing and very inquisitorialinterrogation by the Board.
Nearly all the Board members questioned Klein on matterswhich were not included in the administrative complaint and involveddisputed factual issues. I n questioning Klein, the Board expresseddisbelief at the answers received and impatience with his refusal toagree to their accusations. It is apparent from the record that the Boardbelieved Klein was guilty of infractions more serious than the onecharged in the administrative complaint. Klein disputed the Board'saccusations.
It is also clear that the Board voted to revoke Klein's license topractice medicine based on its belief that Klein had committedinfractions not charged and was untruthful.
Id. (footnote omitted). The Second District concluded that disputed issues of fact
arose during Klein's informal hearing which would Klein the right to pursue a
formal hearing. Id. at 1239.
C_.. The decision in Gonzalez-Gomez
In Gonzalez-Gomez, Gonzalez-Gomez was charged in an administrative
complaint after being convicted of "conspiracy to conunit health care fraud in
violation of federal law." Gonzalez-Gomez, 107 So. 3d at 1140. Gonzalez-Gomez
requested an informal hearing before the Board of Medicine and "did not dispute
the allegations of fact contained in the Administrative Complaint." Id. at 1140-41.
On appeal, Gonzalez-Gomez argued that the Board of Medicine "erred by
disregarding its own precedents when considering mitigätion of the penalty." Id. at
1141. The Third District noted that Gonzalez-Gomez presented mitigating
evidence at the informal hearing, "but the only guideline nd penaltý applicable to
7
the appellee's offense is that set forth by statute, and that is what the Board
concluded was the proper outcome." Id. at 1141 (footi1ote omitted). The court
reviewed the imposition of the Board's penalty under an abuse of discretion and
found that the Board did not abuse its discretion. Id.
Also, the Third District pointed out that
the record clearly shows that Gonzalez-Gomez did not dispute any ofthe facts established in his federal conviction for Medicare fraud.After consultation with his attorney, he responded to the Board'sComplaint by requesting an informal hearing, pnd maintained theposition throughout the administrative proceedings that there were nodisputed issues of fact. At the outset of the adminigrative hearing, theBoard recited that this was an informal hearing at which no disputedissues of fact would be presented. The doctor's counsel did not objectto or dispute this statement. It is undisputed that Gonzalez-Gomezpleaded guilty to Medicare fraud and entered into$a plea agreementwith the federal authorities that gave him liberal penalty reductions inexchange for his continued cooperation in the ongoing Medicareinvestigation. No one disputed that he actually cooperated until thecase closed.
Id. at 1141-42 (emphasis in original). The Third Distriçt affirmed. the Board of
Medicine's final order revoking Gonzalez-Gomez's license to practice medicine.
Id. at 1142.
D. The Gonzalez-Gomez decision is not in express and direct conflict with
Spuza, Mixon, and Klein
The opinions of Spuza, Mixon, and Klein do noi conflict with Gonzalez-
Gomez. In Spuza, despite Spuza's objection to an inform hearing Ênd request for
a formal hearing, the Board held an informal hearing. Spuza, 838 So. 2d at 678. In
8
Mixon, the First District's opinion flatly states that the record "clearly reveals the
existence of disputed factual issues." Mixon, 686 So. 2d at 756. In Klein, the
Board considered matters outside of the administrative öomplaint and "involved
disputed factual issues." Klein, 625 So. 2d at 1238. Contrary to Petitioner's
argument, at no point during the informal hearing in front of the Board of Medicine
was it clear that Petitioner disputed the facts or that there were disputed issues of
fact. Furthermore, on pages 7 and 8 of his Jurisdictional Initial Brief, Petitioner
relies on facts that were not part of the Gonzalez-Gomez decision and therefore,
cannot be considered by this Court. See The Florida Star, 530 So. 2d at 288;
Reaves, 485 So. 2d at 830; School Bd. of Pinellas CÈnty, 467 So. 2d at 986;
Jenkins, 385 So. 2d at 1359. Spuza, Mixon, and Klein involved instances where the
licensee specifically requested a formal hearing which was ignored or where the
reviewing court found the existence of disputed facts.. However, in Petitioner's
case, he requested "an informal hearing and maintained tú position throughout the
administrative proceedings that there were no disputed issues of fact." Gonzalez-
Gomez, 107 So. 3d at 1141. Therefore, no express and direct conflict exists
between Gonzalez-Gomez and Spuza, Mixon, and Klein.
II. THIS COURT CANNOT CONSIDER PETITIONER'SSECOND ARGUMENT AS IT DOES NOT PERTAIN TOTHE DISCRETIONARY JURISDICTION OF THIS COURT.
9
This Court should not consider Petitioner's second argument set forth in his
Jurisdictional Initial Brief as it is not ground for this Court to accept jurisdiction.
Rule 9.120 of the Florida Rules of Appellate Procedure requires a jurisdictional
brief to be "limited solely to the issue of the supreme court's jurisdiction and
accompanied by an appendix containing only a conformed copy of the decision of
the district court of appeal . . . ." Fla. R. App. P. 9.120(d).
Petitioner's Jurisdictional Initial Brief fails to comply with these two
requirements. Petitioner's second issue discusses whether Petitioner's due process
rights were violated. (PJB. 8-10). As this is an issue outside of the jurisdictional
determination, Petitioner's Jurisdictional Initial Brief dbes not comply with the
appellate rules. See Fla. R. App. P. 9.120(d). Furthermore, Petitioner's
Jurisdictional Initial Brief does not include an appendix with a conformed copy of
the opinion issued by the district court of appeal. See Fla. R. App. P. 9.120(d).
Since Petitioner's brief does not comply with these requirements, his jurisdictional
initial brief should not be considered. However, this Court can seek Petitioner to
amend his Jurisdictional Initial Brief to comply with the appellate rules.
CONCLUSION
Based on the foregoing discussions, the Department requests this Court deny
exercising its discretionary jurisdiction in this case.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by ELECTRONIC MAIL to Margaret Brenan Correoso at
I HEREBY CERTIFY that the foregoing is prepared using Times New
Roman 14 point font in compliance with the font requirements of Rule 9.210(a)(2)
of the Florida Rules of Appellate Procedure.
Therese A. Savona
12
IN THE SUPREME COURT OF FLORIDA
ALBERTO GONZALEZ-GOMEZ, M.D.,
Petitioner,
v. CASE NO.: SC13-612L.T. NO.: 3D11-1840
FLORIDA DEPARTMENT OFHEALTH,
Respondent./
INDEX TO APPENDIX
A. Gonzalez-Gomez v. Dep't ofHealth, Opinion Filed December 19, 2012,by the Third District Court ofAppeal
1
Eljírb 38tritt Court of AppealState of Florida, July Term, A.D. 2012
Opinion filed December 19, 2012.Not final until disposition of timely filed motion for rehearing.
No. 3D11-1840DOH No. 10-8608
Alberto Gonzalez-Gomez, 10.,Appellant,
vs.
Department of Health,Appellee.
An Appeal from the Florida Board of Medicine.
The Health and Business Law Group and Rafael A. Gaitan and Gus Suarez,for appellant.
Mark Graham Hanson and Wings S. Benton, Assistant General Counsels,Prosecution Services Unit (Tallahassee), for appellee.
Before SUAREZ, ROTHENBERG and SALTER, JJ.
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¡(1)(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(1)(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.
2
Gonzalez-Gomez requested an informal hearing before the Florida Board of
Medicine ("Board"),1 in order to attempt to mitigate 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 fine, pursuant to Florida
Administrative Code Rule 64B8-001(2)(c)1. Pursuant .tp 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 tlze 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. 64B8-001(2)(c)l. Gonzalez-Gomez was. convicted of "a crime
1 The Florida Board of Medicine is the administrative body charged with finalagency action in the regulation of the practice of medicine pursuant to section20.43 and chapters 456 and 458, Florida Statutes.2 The appellant cites to administrative rulings from agencies other than the Boardof Medicine, as well as to cases that are legally not apposite. Further, the "Llovet"case the appellant refers to appears to differ in the level of offense, and thereforethe level ofpenalty to be applied.
3
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 fine
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 administratiye 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 Cornm'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 atf911 ("When the Board
imposes a penalty within the permissible statutory range,van 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 4 did.
4
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 this statement. It is unçlisputed 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 91; Grimberg, 542 Sp. 2d at 457, 458.
3 Indeed, in the record, the Board gave its reasons for not mitigating:
CHAIRMAN THOMAS - And the main concern that I have ishealth care fraud. Whether he told his parole officer or told hiscounsel is inconsequential. We are addressing the fact that he wasinvolved in a major fraud and I believe in the statenof Florida todaypeople involved in medical fraud should not be practicing. And theonly fair resolution is revocation.
5
The administrative order under review is affirmed.
