Florida/Georgia Personal Injury & Workers Compensation

...that provided for in the disciplinary guidelines set forth in Florida Administrative Code Rule 61G18-30.001, without including written findings of aggravating circumstances in its order to justify the increased penalty. Pursuant to Florida Statutes section 455.2273, the Board was required to include in its order imposing sanctions written findings as to the aggravating circumstances which were the basis for its deviation from the recommended guidelines penalty....

...ground that her license to practice psychology in Texas had been suspended based on felony convictions related to her practice of psychology in that state. She urges two points on this appeal. First, she asserts that the Board failed to comply with section 455.2273, Florida Statutes (1991), because it did not impose a penalty in accordance with the disciplinary guidelines set out in rule 21U-18.003(1), Florida Administrative Code, and it did not make any specific findings of the aggravating cir...

...Because the Board concedes on appeal that it did not rely on precedent in permanently denying Dr. Marrero's application, we need not address the second issue. With regard to the first issue, we hold that the Board's exercise of discretion was inconsistent with the requirements in section 455.2273 and rule 21U-18.003 and vacate the order, and pursuant to section 120.68(12), Florida Statutes (1991), we remand with directions for further proceedings....

...Marrero argues, the Board could not permanently deny her application without considering the factors set forth in rule 21U-18.003(2), Florida Administrative Code, and making specific findings of the aggravating circumstances that support such departure, as required by section 455.2273(3), Florida Statutes, which it did not do....

...uspension in the state of Texas. Clearly, the Board had such authority. See § 490.009(1)(a), (2)(b) and (c), Fla. Stat. (1991). Rather, the issue is whether the Board exercised its authority to deny the application in a manner not inconsistent with section 455.2273 and its rule by "permanently" denying the application and thereby imposing a penalty different from that recommended in its own guidelines in rule 21U-18.003 without considering the factors set forth in that rule and without making specific findings of the aggravating circumstances that would support deviation from the recommended guidelines penalty. Section 455.2273, Florida Statutes (1991), applies to all boards and commissions in the Department of Professional Regulation and provides in pertinent part: (1) Each board shall adopt, by rule, disciplinary guidelines applicable to each specific ground for disciplinary action which may be imposed by the board....

...d by statute. Yet, applications for licensure can be denied on any of the disciplinary grounds described in the other subparagraphs. This construction urged by the Board is patently unreasonable and inconsistent with the express statutory purpose of section 455.2273 to achieve consistency in the application of penalties to persons regulated by the Board....

...a departure from the guidelines. Any decision by the Board to depart from the guidelines and impose a greater penalty by permanently denying the application will require specific findings as to the factors constituting aggravating circumstances. See § 455.2273(3), Fla....

...Stat. (1991). Since the Board's exercise of discretion to permanently deny Dr. Marrero's license imposed a greater penalty on the applicant than the suspension imposed by the regulatory authorities in Texas, the Board's decision was inconsistent with section 455.2273(3) and rule 21U-18.003....

...support that departure. However, for us to do so would amount to substituting the court's judgment for that of the Board, contrary to section 120.68(12). Accordingly, since the Board's exercise of discretion was inconsistent with the requirements of section 455.2273, Florida Statutes, and rule 21U-18.003, we vacate the order under review and remand to the Board with directions to reconsider and exercise its discretion in acting on Dr....

...nal explanation for the increase in penalty. In 1986, the legislature enacted legislation requiring each board to "adopt, by rule, disciplinary guidelines applicable to each specific ground for disciplinary action which may be imposed by the board." § 455.2273(1), Fla....

...Code Rule 21E-17.001(19)(b). [3] Although the Board may deviate from its range of designated penalties in an appropriate case, the Board did not make a specific finding of an aggravating circumstance that would allow it to impose a penalty above its guidelines. § 455.2273(3), Fla....

...nded penalty unless the board also rejects one of the hearing officer's findings of fact or conclusions of law. Such a rule is not required by section 120.57(1)(b)(10), Florida Statutes (1987), and is incompatible with the recently added language in section 455.2273, Florida Statutes (1987)....

...ned in the law but not necessarily in any specific profession. The various administrative boards have far *972 greater expertise in their designated specialties and should be permitted to develop policy concerning penalties within their professions. Section 455.2273 appears to give boards this policy-making authority while protecting licensees and the public from politics in the guise of policy by requiring the boards to publish established guidelines....

...While other portions of this statute prohibit an agency from modifying a finding of fact which is supported by competent substantial evidence, nothing in the statute compels the agency to reject a finding of fact or a conclusion of law before it states with particularity its reasons for imposing a different penalty. Section 455.2273 was created in 1986 and affects violations after January 1, 1987....

...a fine which is well below the minimum penalty that the Commission had established in its guidelines which were in effect at the time of these violations in April and May 1987. It is interesting to note that the Commission followed the procedure of section 455.2273(3), Florida Statutes (1987), and gave specific findings to justify its increase in the recommended penalty. Essentially, it determined that multiple violations of these statutes warranted a penalty greater than that warranted for an isolated offense. Although the Commission's approach is helpful, in my opinion, it was not legally obligated under section 455.2273(3) to provide an explanation of "aggravating circumstances" in order to modify the penalty within the range described by its guidelines....

...compliance with the rule, prohibits reinstatement of appellant's revoked license. Appellant also argues that the Board of Nursing erred in not applying Rule 210-10.011, Florida Administrative Code, to his case. We disagree. We note, initially, that section 455.2273, Florida Statutes (1986 Supp.), effective June 13, 1986, mandates that each board adopt by rule disciplinary guidelines applicable to each ground for disciplinary action no later than January 1, 1987....

...nes provide. Fla. Admin. Code R. 61J2-24.001. This is in keeping with the legislative policy behind the statutory requirement that minor violations be appropriately treated without the severity intended for violations endangering public welfare. See § 455.2273(2) Fla....

...pose.” R.U. v. Dep’t of Children & Families, 782 So.2d 1024, 1025 (Fla. 4th DCA 2001). Similarly, in this case FREC’s use of a “catch-all” may be authorized by section 475.25(1)(e), but the manner of its use would negate the purpose of section 455.2273(2) that penalties be imposed under a policy of distinguishing minor violations from more serious ones endangering the public....

...n charged under section 475.25(1)(e). Allowing FREC’s application of the 8-year guideline to the minor accounting violations is to permit administrative punishment for the more serious charges not proven. That, too, would both negate the policy of section 455.2273(2) and be contrary to due process....

...e skill and safety ... as a result of any medical or physical condition” may be denied a license. Although guidelines in rule 64B8-8.001, Florida Administrative Code, provide first offense penalties ranging from probation to indefinite suspension, section 455.2273, Florida Statutes, gives the board discretion to depart from the guidelines and impose a harsher penalty where there are aggravating circumstances....

...ge or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the licensee or was an identified member of the general public. (Emphasis added.) Section 455.2273, Florida Statutes (1997), provides: 1) Each board, or the department when there is no board, shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imp...

...(Emphasis added.) Arias maintains that the agency failed to comply with the legislative requirement that there be penalty guidelines in place, so as to alert licensees of proscribed actions and so as to ensure consistency in penalties imposed. We agree. Through section 455.2273, the legislature has acknowledged the importance and necessity of disciplinary guidelines....

...guidelines for enforcement, left the licensee in a predicament ripe for arbitrary and erratic enforcement, and obviously provided no standards sufficiently governed by the legislature as to constitute a judicially reviewable discretion. Considering section 455.2273, we agree with the licensee’s position that the legislature could not have intended section 475.25(l)(b) to be a carte blanche for the Commission to suspend real estate professionals license for the violation of any legal duty with...

...Webb, 367 So.2d 201 (Fla.1978), the supreme court held that “so long as the penalty imposed 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.” However section 455.2273 was created in 1986 and affects violations occurring after January 1,1987....