Florida/Georgia Personal Injury & Workers Compensation

...Paul, 505 U.S. 377, 382 , 112 S.Ct. 2538 (1992). This particular principle looms large in this ease, which concerns certain provisions of Florida’s Firearms Owners’ Privacy Act, Chapter 2011-112, Laws of Florida (codified at Fla. Stat. §§ 790.338 , 456.072, 395.1055, & 381.026)....

...B Based on these six anecdotes, the Florida Legislature enacted FOPA, which did several things. First, the Act created Fla. Stat. § 790.338 , entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions.” Second, the Act added language to Fla. Stat. § 456.072 to provide disciplinary measures for violations of its provisions....

...Medicine. See § 790.338(8). Another Florida statute, as amended by FOPA, states that “violating any of the provisions” of FOPA, as set forth in § 790.338, “shall constitute grounds for which ... disciplinary actions ... may be taken.” See § 456.072(l)(nn) (emphasis added). Statutorily, FOPA violations are punishable by a fine of up to $10,000 per offense, a letter of reprimand, probation, suspension, compulsory remedial education, or permanent license revocation. See § 456.072(2)(a)-(j); Joint Statement of Undisputed Facts, D.E....

...dations (because it uses the words “should refrain”), the same cannot be said for the record-keeping (“may not”), inquiry (“shall ... refrain”), and anti-discrimination (“may not”) provisions. More fundamentally, the argument ignores § 456.072(l)(nn), which states (emphasis, ours) that “violating any of the provisions” of § 790.338 — i.e., even the so-called suggestive ones — “shall constitute grounds for which ......

...ses the line and becomes “unnecessary” harassment — and wrong guesses will yield severe consequences. The statute provides that a violation of any provision “shall constitute grounds for which disciplinary actions ... may be taken.” Id. at § 456.072(l)(nn)....

...Violators of the Act risk suspension or permanent revocation of their medical licenses; restriction of their practices to certain settings, conditions, or numbers of hours; fines of up to $10,000 for each separate offense; probation; refunds of fees billed; and remedial education, among others. Id. at § 456.072(2)(b)-(d), (f), (i)-(j)....

...Dep't of Prof'l Regulation, Bd. of Med., 542 So.2d 457, 457 (Fla. 3d DCA 1989) ("The appellate function, on review of penalties imposed by an administrative agency, is to determine whether there are valid reasons in the record in support of the agency's order."). Section 456.072(2), Florida Statutes (2002), lists penalties which the Board may impose when a person is found guilty of violating chapter 458, ranging from permanent revocation of a license to issuance of a letter of concern....

...d subject to such conditions as the board . . . may specify. Those conditions may include, but are not limited *911 to . . . work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found." § 456.072(2)(f), Fla....

...1st DCA 2004) (recognizing that imposition of a penalty is a complex task that rests within the sound discretion of the Board). The terms of probation imposed here, including direct supervision and revocation of Appellant's dispensing privilege, were authorized by and within the range of permissible penalties under section 456.072(2)(f), Florida Statutes; therefore, the Board did not abuse its discretion in imposing these probationary terms....

...Appellant appeals the Board of Pharmacy's final order denying his petition to initiate rulemaking in which he sought to require the Board to establish reapplication rules for pharmacists whose licenses have previously been revoked. To address whether the Board properly denied Appellant's petition requires us to construe section 456.072(6), Florida Statutes (2006). In doing so, we agree with Appellant that section 456.072(6) is unconstitutional as an unauthorized delegation of legislative authority, in violation of the separation of powers requirement contained in Article II, section 3 of the Florida Constitution. Section 456.072(6) purports to grant the executive branch the authority to make *29 fundamental and primary policy decisions which can only be constitutionally rendered by the legislature, which is elected to perform those tasks. Chiles v. Children A, B, C, D, E & F, 589 So.2d 260, 266 (Fla.1991). In our opinion, we first summarize the relevant facts and procedural history, then analyze the separation of powers' requirement in our state constitution, along with section 456.072(6) and the relevant cases which compel our decision here....

...mitting a formerly licensed pharmacist to apply for relicensure. Appellant then filed a petition to compel the Board to adopt a rule allowing his reapplication for licensure, under section 120.54, Florida Statutes (2006). Appellant acknowledged that section 456.072(6) purports to allow the Board the option to adopt reapplication rules, but he asserted that the legislature cannot delegate this much authority to the Board without providing legislative guidance. Thus, Appellant argued, section 456.072(6) cannot be read permissively, but must be read to require the Board to adopt reapplication rules, or it is unconstitutional as an unauthorized delegation of legislative authority. After a hearing, the Board denied Appellant's petition. Constitutionality of Section 456.072(6), Florida Statutes (2006) Article II, section 3 of the Florida Constitution creates three branches of government and prohibits one branch from exercising the powers of the other two branches: Branches of government.-The powers of th...

...When a statute lacks adequate guidelines, courts cannot determine if the agency is carrying out the legislative intent. Askew v. Cross Key Waterways, 372 So.2d 913, 918-19 (Fla.1978). To determine whether a violation of the nondelegation doctrine has occurred, we must evaluate section 456.072(6), Florida Statutes (2006), which states: If the board ....

...ofessionals shall be permitted to reapply. Cf. Sims, 754 So.2d at 669-70 (finding law was not unconstitutional because it clearly fixed the penalty to be imposed, delegating only the details of carrying out the execution to the department). Further, section 456.072(6) provides no standards or guidelines regarding when the Board should exercise its discretion to establish reapplication rules. Accordingly, section 456.072(6) constitutes an unauthorized delegation of legislative authority....

...ment in exercising its discretion granted under the statute). Similar to the statute at issue in Martin, which did not articulate any factors the Department should consider when deciding whether to permit a candidate's withdrawal after the 42nd day, section 456.072(6) fails to articulate any standards regarding whether the Board should institute rulemaking to develop reapplication rules. We find the Board's reliance on the exceptions to the nondelegation doctrine to be unpersuasive, as section 456.072(6) does not implicate the Board's licensing or disciplinary decision pertaining to an individual applicant, and it does not require a case-by-case review of a fluid and complex subject....

...474 So.2d at 363. We found that it was not, explaining that the legislature may delegate some discretion in the operation and enforcement of the law, but it cannot delegate the power to say what the law is. Id. Unlike the statute at issue in Jones, section 456.072(6) grants unbridled discretion to the Board to determine the professional fate of a group of persons, not the limited discretion to determine whether an administrative punishment is too severe....

...o the Board to determine under what circumstances it should allow a person whose license has been permanently revoked to reapply. Because none of the exceptions to the nondelegation doctrine apply here, we find that the second and third sentences of section 456.072(6) vesting unbridled discretion in the Board are unconstitutional. Having found this portion of the statute unconstitutional, we must now address whether the valid portion of it can be severed from the invalid portion. Severability Although section 456.072(6) contains no severability provision, we must determine whether the constitutionally invalid section, which purports to grant the Board the discretion to develop reapplication rules, is severable from the rest of the statute....

...5th DCA 1990) (citing Limpus v. Newell, 85 So.2d 124 (Fla.1956)). When the valid sections can accomplish the legislature's intent *32 without the invalid portions, the statute is severable. Id. Were we to sever the first sentence from the remainder of the statute here, section 456.072(6) would state: "If the board ....

...determines that revocation of a license is the appropriate penalty, the revocation shall be permanent." Although this sentence can be separated and will be a complete act in itself, the second and third prongs of the test, relating to legislative intent, demonstrate that section 456.072(6) is not severable. In 1992, the legislature amended section 455.227, Florida Statutes (1992), by adding the provision at issue as section 455.227(4), Florida Statutes. See ch. 92-149 § 22, Laws of Fla. (1992). This provision later became section 456.072(5), Florida Statutes (1997), now numbered as section 456.072(6)....

...After the 42nd day, withdrawal would not be permitted under any circumstances. Id. at 774. The court reasoned that this result was inconsistent with the legislature's clear intent to permit withdrawal under some circumstances. Id. Similarly, we have determined that the second and third sentences of section 456.072(6) violate Article II, section 3; therefore, section 456.072(6) is unconstitutional. As in Martin, we conclude that by including the second and third sentences in section 456.072(6), the legislature has clearly indicated its intent that reapplication should be permitted in some circumstances....

...eapplication in at least some circumstances. Therefore, we find that the good and bad features of the statute are not separable, as it does not appear that the legislature would have passed the first sentence without the rest. Because we do not find section 456.072(6) severable, we must consider whether another interpretation of the statute can avoid holding it unconstitutional. Interpreting "May" as "Shall" in Section 456.072(6), Florida Statutes (2006) Courts have an obligation to give a statute a constitutional construction when this is possible. Tyne v. Time Warner Entertainment Co., 901 So.2d 802, 810 (Fla.2005). Appellant argues that reading "may" to mean "shall" in the second sentence requires the Board to adopt reapplication rules and cures section 456.072(6) of its unconstitutionality....

...4th DCA 2006); Comcoa v. Coe, 587 So.2d 474, 477 (Fla. 3d DCA 1991); Allied Fidelity Ins. Co. v. State, 415 So.2d 109, 110-11 (Fla. 3d DCA 1982) (rejecting the appellant's argument that "shall" always means "shall"). Here, the context in which "may" is used in section 456.072(6) does not permit us to read it as "shall." Cf....

...statutory requirements for issuing the writ had been met even though the statute provided that a circuit court "may" issue a writ of replevin, reasoning that based on the context, "may" implied an imperative obligation). Accordingly, we cannot give section 456.072(6) a constitutional interpretation by reading "may" to mean "shall," which would require the Board to adopt reapplication rules. Conclusion Because we find that section 456.072(6), Florida Statutes (2006), grants the Board the absolute, unfettered discretion to decide whether formerly licensed pharmacists may reapply for licensure, we hold that the statute is an unconstitutional delegation of legislative aut...

...emaking. AFFIRMED. POLSTON, J., concurs; HAWKES, J., concurring in part and dissenting in part with written opinion. *34 HAWKES, J., concurring in part and dissenting in part. I concur with the majority's determination that the last two sentences of section 456.072(6), Florida Statutes, constitute an unconstitutional delegation of legislative authority....

...Page, Department of Health, Bureau of Health Care, Tallahassee, for Appellees. ERVIN, J. Appellant, Robert Roy Cone, D.O., M.D., appeals pro se the corrected final order of the Board of Osteopathic Medicine, permanently revoking his license to practice osteopathic medicine, [1] pursuant to section 456.072(1)(f), Florida Statutes (2003), based on the revocation of his license to practice allopathic medicine [2] in the state *1009 of California for a violation of that state's laws. He raises the following points on appeal: I. Whether the Board properly applied § 456.072(1)(f), Florida Statutes, to revoke appellant's license to practice osteopathic medicine based solely on the revocation of appellant's California license to practice allopathic medicine....

...o practice osteopathic medicine. We conclude that issues II, III and V are without merit, and summarily affirm as to them. As to issues I and IV, relating to the sufficiency of the allegations of the administrative complaint to charge a violation of section 456.072(1)(f), we reverse the corrected final order and remand the case with directions, in that the order fails to specify how the revocation of appellant's license to practice medicine in the state of California was the result of a violation of law in that state which would also constitute a violation of Florida law....

...The administrative complaint filed by appellee Department of Health (DOH), requested that the Board of Osteopathic Medicine discipline appellant's osteopathic license, on the following ground: Based upon [the revocation of appellant's license to practice medicine in California], the Respondent has violated Section 456.072(1)(f), Florida Statutes (2000), by having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdictio...

...Appellant contends the Board of Osteopathic Medicine cannot legally discipline *1010 a physician for acts allegedly occurring in the course of a different specialty of medicine in another jurisdiction. A cursory reference to the general provisions of 456.072(1)(f) clearly belies that argument. This statute provides in pertinent part: 456.072 Grounds for discipline; penalties; enforcement....

...regulate all professionals within the Division of Medical Quality Assurance. See §§ 456.001, 456.002, and 456.004, Fla. Stat. (2003). Appellant also contends that the Board lacked the authority to seek revocation of his Florida license pursuant to section 456.072(1)(f) without alleging how the violation of California law was tantamount to a violation of Florida law....

...Cone's license as a health practitioner had been revoked in another jurisdiction. In support of its argument, it refers to section 459.015, Florida Statutes (2003), which states in part: (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2): .......

...These provisions offer no support to the Board's position because, as stated, the license of appellant, revoked in California, was for a different specialty, i.e., that of medicine. In our judgment, the Board's right to proceed against appellant's Florida license under section 456.072(1)(f) must find support in some other pertinent statutory provision. Among other provisions, it cites section 456.072(2), which states in part: When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct const...

...act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties: .... (b) Suspension or permanent revocation of a license. The Board points out that the "applicable practice act," referenced in section 456.072(2), is chapter 459, pertaining to osteopathic medicine. It continues that the general provisions of section 456.072 authorize suspension or revocation of the practitioner's license for any of the grounds set out in chapter 459, and that section 459.015(1)(pp) allows the Board to bring disciplinary action against a licensee for, among other things, "[v]iolating any provision of this chapter or chapter 456." Finally, it refers to section 459.015(2), which provides: The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1)....

...ry provision covering the same and other subjects in general terms."); State, Bd. of Trustees of the Internal Improvement Trust Fund v. Day Cruise Ass'n, Inc., 794 So.2d 696, 701 (Fla. 1st DCA 2001). Section 459.015 is, of course, more specific than section 456.072, in that it pertains only to disciplinary actions against the license of an osteopathic professional....

...at the revoked license must be one for osteopathic medicine. Similarly, the Board's reference to the language in section 459.015(2), permitting the Board to revoke the Florida license of a physician who was found guilty of violating any provision of section 456.072(1), must be limited by the provisions in the latter statute, which explicitly require that the violation of the law in the foreign state, leading to the subsequent disciplinary action, be, as well, a violation of Florida law. Although we are unwilling to conclude, as a matter of law, that the Board of Osteopathic Medicine may not discipline the license of an osteopathic physician pursuant to section 456.072(1)(f), we are in agreement that the administrative complaint failed to charge a violation because it did not allege that appellant's license to practice any regulated profession was revoked, suspended, or otherwise acted against, by t...

...t. We have jurisdiction. See rule 9.100(c)(3), Fla. R.App. P. Because the emergency suspension order sets forth sufficient facts and reasons to support a finding of immediate danger to the public health, safety and welfare, we deny the petition. [1] Section 456.072(1)(u), Florida Statutes (2004), allows the suspension of a license of a health care professional if the licensee engages in or attempts to engage in sexual misconduct as defined in and prohibited by section 456.063(1)....

...The Department of Health filed an administrative complaint with the Board of Medicine against orthopedic surgeon Leon Jay Abram, M.D., alleging that Abram, by performing a surgical procedure on a patient's T3 vertebra level rather than the intended T4 level, violated section 456.072(1)(aa), Florida Statutes (2004) (emphasis added): (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: * * * (aa) Performing or attempting to perform health care...

...Abram's counsel replied that disciplining Abram for a wrong-site procedure while he was practicing within the standard of care essentially would impose strict liability against him. The Board voted to accept the administrative complaint's legal conclusion that Abram violated section 456.072(1)(aa)....

...eously interpreted the law and, if so, whether a correct interpretation compels a particular action." Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002). As the Legislature delegated to the Board the power to enforce section 456.072(1)(aa), we are required to be highly deferential to the Board's interpretation of such statute....

...ons concerning the constitutionality of statutes are pure questions of law subject to the de novo standard of review." State v. Sigler, 967 So.2d 835, 841 (Fla.2007). Below and in his initial brief, Abram acknowledged the Board's interpretation that section 456.072(1)(aa) essentially creates strict liability for performing a wrong-site procedure....

...tatute's plain meaning. The Department adds that, even if the statute includes an irrebuttable presumption that a wrong-site procedure falls below the standard of care, the statute remains constitutional as applied. We agree with the Department that section 456.072(1)(aa)'s plain meaning does not include a presumption that a wrongsite procedure falls below the standard of care. The statute makes no mention of the standard of care, and many of the thirty-plus actions constituting section 456.072(1) violations have nothing to do with a patient's care. Abram has not cited any authority supporting his assumption that the Legislature included a wrong-site procedure as a section 456.072 violation *89 because it presumed a wrong-site procedure falls below the standard of care. Even if section 456.072(1)(aa) included an irrebuttable presumption that a wrong-site procedure falls below the standard of care, the statute would remain constitutional as applied....

...standard of care would justify a conclusive presumption (if one existed). In deciding this case, we would be remiss if we did not express our reservations regarding the origin from which this case has arisen, that is, the Board's interpretation that section 456.072(1)(aa) creates strict liability for performing a wrong-site procedure, and Abram's acknowledgement of that interpretation as the springboard for his due process argument....

...Because Abram did not contest the Board's interpretation of the statutory language below or in his initial brief, that issue is not before us today. We raise the issue at this time to prevent readers of this opinion from assuming we agree with the premise underlying this case that section 456.072(1)(aa) creates strict liability....

...ound. On June 2, 2011, Governor Rick Scott signed into law “[a]n Act relating to the privacy of firearm owners” (hereinafter, the “Firearm Owners’ Privacy Act” or the “Act”). CS/CS/HB 155 (codified at Fla. Stats. §§ 790.338, 381.026, 456.072, 395.1055)....

...p (the “antidiscrimination provision”); or (iv) unnecessarily harass a patient about firearm ownership (the “anti-harassment provision”). 1 Violation of any provision of the law constitutes grounds for disciplinary action under Fla. Stats. §§ 456.072, 395.1055....

...7 The State is permanently enjoined from enforcing § 790.338(1), (2), (5), and (6). The State is also permanently enjoined from enforcing § 790.338(8), to the extent that it provides that violations of § 790.338(1) and (2) constitute grounds for disciplinary action. The State is further permanently enjoined from enforcing § 456.072(l)(mm), to the extent that it provides that violations of § 790.338(1), (2), (5), and (6) shall constitute grounds for which disciplinary actions specified under § 456.072(2) may be taken....

...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....

...For the reasons provided in this Order, the Motion is granted. I. Background On June 2, 2011, Governor Rick Scott signed into law “[a]n Act relating to the privacy of firearm owners” (hereinafter, “Firearm Owners’ Privacy Act”). CS/ CS/HB 155 (codified at Fla. Stats. §§ 790.338, 381.026, 456.072, 395.1055)....

...“anti-discrimination provision”); or (iv) unnecessarily harass a patient about firearm ownership (the “antiharassment provision”). 1 Violation of any provision of *1372 the law constitutes grounds for disciplinary action under Fla. Stats. §§ 456.072, 395.1055....

...3 (“Allegations that a physician merely made an inquiry regarding firearm ownership or had a discussion about firearm safety would be legally insufficient [for a complaint before the Department of Health] because neither act is prohibited under the law.”). However, §§ 790.338(8) and 456.072(l)(mm) provide that a violation of the inquiry restriction provision constitutes grounds for disciplinary action against the practitioner....

...30:22-25 (“[T]he legislature decided that they didn’t want to interfere with the rights of the physicians to terminate the relationship with the patients if there was a refusal to answer.”). However, violation of the antidiscrimination provision may constitute grounds for disciplinary action under § 456.072(l)(mm)....

...Although the State interprets several of the Firearm Owners’ Privacy Act’s provisions as hortatory in nature, the law provides for penalties in the form of disciplinary action when a practitioner violates any provision of § 790.338. See' § 790.338(8); 456.072(l)(mm)....

...8 The State is also preliminarily enjoined from enforcing § 790.338(8), to the extent that it provides that violations of § 790.338(1) and (2) constitute grounds for disciplinary action. The State is further preliminarily enjoined from enforcing § 456.072(l)(mm), to the extent that it provides that violations of § 790.338(1), (2), (5), and (6) shall constitute grounds for which disciplinary actions specified under § 456.072(2) may be taken....

...tions.” NRA Br. 3 (quoting United States v. Robinson, 922 F.2d 1531, 1534 (11th Cir.1991)). The basis for imposing sanctions for violations of the law does not come from the language in § 790.338(1)-(7), but from the language in § 790.338(8) and § 456.072(l)(mm), which expressly provide that violations of § 790.338 shall constitute grounds for disciplinary action....

...inent part: (1) When the Board finds that an applicant or licensee whom it regulates pursuant to Chapter 460, F.S., has violated the below-listed provision, it shall issue a final order imposing appropriate penalties, for each count, as set forth in Section 456.072(2), F.S., within ranges recommended in the following disciplinary guidelines....

...(1) entered a plea of nolo contendere to a charge of burglary of an unoccupied dwelling, an offense listed in section 435.04(2)(z), Florida Statutes (“Level 2 screening standards”), and (2) by failing to report the fact of her plea to the Board of Nursing in violation of section 456.072(1)(x), Florida Statutes (“Grounds for discipline; penalties; enforcement”)....

...435.04” constitutes grounds for disciplinary action by the Board of Nursing under section 464.018(1)(e). Section 435.04(2)(z) lists burglary in section 810.02, Florida Statutes, as a qualifying offense. Section 464.018(2) authorizes the Board to “impose any of the penalties in s. 456.072(2) against any . . . licensee who is found guilty of violating any provision of subsection (1) of this section.” In turn, section 456.072(2)(b), Florida Statutes (2015), empowers the Board to impose a penalty of “suspension or permanent revocation of a license.” Section 456.079(1), Florida Statutes, authorized the Board “to adopt by rule ....

...8(1)(h) and (n). [1] The Department recommended that the Board permanently revoke Fernandez's license and assess costs in the amount of $2,952.93. The Board agreed and entered a final order adopting the recommendation, citing sections 464.018(2) and 456.072(2), Florida Statutes (2008), [2] as a basis for the penalty....

...Affirmed in Part; Reversed in Part and Remanded for proceedings consistent with this opinion. WARNER and CONNER, JJ., concur. NOTES [1] Section 464.018(1)(h) states that "[u]nprofessional conduct, as defined by board rule" is grounds for denial of a license or disciplinary action as specified in section 456.072(2), Florida Statutes (2008)....

...Section 464.018(1)(n) states that "[f]ailing to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the licensee is not qualified by training or experience" is grounds for denial of a license or disciplinary action as specified in section 456.072(2). § 464.018(1)(n), Fla. Stat. (2008). [2] Section 464.018(2) states that the "board may enter an order ... imposing any of the penalties in s. 456.072(2) against any ... licensee who is found guilty of violating any provision of subsection (1) of this section...." § 464.018(2), Fla. Stat. (2008). Section 456.072(2)(b) provides for the "suspension or permanent revocation of a license" for violations of any grounds set forth in section 456.072(1) or the applicable practice act. § 456.072(2)(b), Fla. Stat. (2008). [3] Rule 64B9-8.006 provides the disciplinary guidelines, range of penalties, and aggravating and mitigating circumstances used by the Board in discharging its duties under sections 464.018 and 456.072....

...had consulted with her for a medical procedure. Paylan was sentenced to 364 days in jail with jail credit applied. On July 29, 2015, the Department filed an amended administrative complaint against Paylan alleging that she violated section 456.072(1)(c), Florida Statutes (2014), because she was found guilty of crimes related to the practice of medicine....

...Whether or not Paylan met the requirements for continued licensure under section 456.0635(3)(a)(2) was not an issue that was decided by the Board of Medicine in her disciplinary proceedings. Similarly, the Department, in reviewing Paylan's application for renewal, did not base the nonrenewal on Paylan's violation of section 456.072(1)(c), which permits discipline against a physician's license where a physician has either been convicted of or pleaded to a crime relating to the practice of the physician's profession....

...Kale, alleging that in June 2013, he was convicted in the United States District Court for the Middle District of Florida of two counts of health care fraud in violation of 18 U.S.C. § 1347, and thereby violated section 490.009(1)(w), Florida Statutes (2013), through a violation of section 456.072(1)(ii), Florida Statutes (2013)....

...findings of mitigation or aggravation. The Board entered a Final Order, wherein it adopted the allegations of fact and conclusions of law set forth in the Administrative Complaint; found that it was authorized by section 490.009(2) and/or section 456.072(2) to impose a penalty; and, accordingly, revoked Dr....

...of regulatory boards shall apply to the board.” § 490.004(4)-(5), Fla. Stat. (2013). Section 490.009, Florida Statutes (2013), titled “Discipline,” provides: (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2): ... (w) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto. (2) The department, or in the case of psychologists, the board, may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1). 5 Section 456.072, Florida Statutes (2013), is titled “Grounds for discipline; penalties; enforcement” and states in part: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2)...

...ic welfare). In turn, Florida Administrative Code Rule 64B19-17.002 contains the Board’s disciplinary guidelines and provides: (1) When the Board finds that an applicant or a licensee has committed any of the acts set forth in Section 456.072(1) or 490.009(2), F.S., it shall issue a final order imposing one or more of the penalties listed in Section 456.072(2), F.S., as recommended in the following disciplinary guidelines....

...For a violation of section 490.009(1)(w), the penalty range for a first offense is from reprimand and a $1,000 fine to revocation and a fine up to $10,000. Fla. Admin. 7 Code R. 64B19-17.002(1)(q). For a violation of section 456.072(1)(ii), the penalty range is “[r]evocation and a fine of $10,000, or in the case of application for licensure, denial of license.” Fla....

...Here, Dr. Kale contends that the Board had authority to suspend his license pending his criminal appeal and to retain jurisdiction to revoke his license if his conviction is not overturned. In support of his position, Dr. Kale primarily relies on section 456.072(2) and Mann. Section 456.072(2) permits a board to impose “one or more of the” enumerated penalties, which are listed by lower case letters and include “(b) Suspension or permanent revocation of a license” as one option....

...ry and record-keeping by physicians on the sensitive issue of firearm ownership. The Act does not prevent physicians from speaking with patients about firearms generally. 1 2011 Fla. Laws 112 (codified at Fla. Stat. §§ 381.026, 456.072, 790.338). 4  Case: 12-14009 Date Filed: 07/28/2015 Page: 5 of 152 Nor does it prohibit specific inquiry or record-keeping about a patient’s firearm- ownership st...

...5  Case: 12-14009 Date Filed: 07/28/2015 Page: 6 of 152 Rights and Responsibilities, Fla. Stat. § 381.026, to include several of the same provisions. The Act also amended Fla. Stat. § 456.072, entitled “Grounds for discipline; penalties; enforcement,” to provide for disciplinary measures for violation of the Act....

.... . . 7  Case: 12-14009 Date Filed: 07/28/2015 Page: 8 of 152 Violation of any of the provisions of the Act constitutes grounds for disciplinary action under § 456.072(2). Fla. Stat. § 456.072(1)(nn). Furthermore, “[v]iolations of the provisions of subsections (1)–(4) constitute grounds for disciplinary action under [Fla. Stat. §§] 456.072(2) and 395.1055.” Fla....

...Thus, if the Board of Medicine of the Florida Department of Health (the “Board”) finds that a physician has violated the Act, the physician faces disciplinary measures including fines, restriction of practice, return of fees, probation, and suspension or revocation of his or her medical license. Fla. Stat. § 456.072(2)....

...record-keeping, inquiry, harassment, and discrimination provisions of the Act, § 790.338(1), (2), (5), (6), and from enforcing § 790.338(8), to the extent that it provided that violations of § 790.338(1) and (2) constitute grounds for disciplinary action, and § 456.072(1)(nn), to the extent that it provided that violations of § 790.338(1), (2), (5) and (6) constitute grounds for disciplinary action....

...to the public is prohibited from practicing medicine in this State. § 458.301, Fla. Stat. (2005). The Department instituted this action against Dr. Pendergraft, who is board certified in obstetrics and gynecology, alleging that he violated sections 456.072(1)(k) and 458.331(1)(g), Florida Statutes (2005), which provide that disciplinary action may be taken if a licensee fails to "perform any statutory or legal obligation" placed upon him. Specifically, the Department alleged that Dr. Pendergraft violated sections 456.072(1)(k) and 458.331(1)(g) when he performed a third trimester abortion in his clinic, which is not a hospital. An Administrative Law Judge ("ALJ") agreed, and found that the Department presented clear and convincing evidence that Dr. Pendergraft violated sections 456.072(1)(k) and 458.331(1)(g). In her recommended order, the ALJ determined that Dr. Pendergraft's performance of the third trimester abortion in his clinic was contrary to sections 456.072(1)(k) and 458.331(1)(g) in several respects....

...Based on these findings, the ALJ recommended suspension of Dr. Pendergraft's medical license and imposition of other penalties. The Board approved and accepted the recommended order, including the recommended penalties. On appeal, Dr. Pendergraft argues that the violation of sections 456.072(1)(k) and 458.331(1)(g) cannot serve as the basis for any disciplinary action by the Board because he has not been convicted of violating sections 390.0111 and 797.03. We disagree. The Board disciplined Dr. Pendergraft for "failing to perform any statutory or legal obligation" placed upon him as a licensed physician pursuant to sections 456.072(1)(k) and 458.331(1)(g)....

...Pendergraft is charged with violating may provide penal sanctions, there is no explicit statutory requirement that a licensee be adjudicated guilty of the acts specified in the penal statutes before disciplinary action may be instituted. In fact, both sections 456.072(1)(c) and 458.331(1)(c), Florida Statutes (2005), allow disciplinary action, regardless of adjudication, for crimes the licensee may have committed in any jurisdiction relating to the practice of, or the ability to practice, medicine....

...To require proof, beyond a reasonable doubt, that the medical care provider intended to violate a statute prohibiting certain activities would place a requirement on licensing boards and administrative agencies that would curtail their ability to fulfill their public protection function. Furthermore, neither section 456.072(1)(k) nor section 458.331(1)(g) requires that a licensee be convicted of a penal statute before he can be disciplined by an administrative agency and it does not appear that such a construction would further the intent of the disciplinary statutes....

law.’ ”); Sloban, 982 So.2d at 31 (holding section 456.072(6), Florida Statutes, granted “unbridled .discretion”

...Mea-le, who prepared the Recommended Order, pursuant to section 120.57(l)(a), Florida Statutes. Following the issuance of ALJ Meale’s recommended order, the Department moved for an order assessing costs and fees against Dr. Sabates for the investigation and prosecution of the case in accordance with section 456.072(4), Florida Statutes (2011)....

...ns of law. Dr. Sabates also asserts that the Board should not have awarded the Department its attorneys’ fees because the Department did not present sufficient evidence to support the award when it did not submit any attorney affidavits. We agree. Section 456.072(4), Florida Statutes (2011), permits the Board to impose “costs related to the investigation and prosecution of the case” only after it considers “an affidavit of itemized costs and any written objections thereto.” § 456.072(4). Although the Department submitted an affidavit from its Operations and Management Consultant Manager for the Consumer Services and Compliance Management Unit, an award of attorneys’ fees under section 456.072(4) “must be supported by competent, substantial evidence by the attorney performing the services and by an expert as to the value of those services.” Georges v....

...Consideration of this aspect of a suspension order is important to prevent "the disruption of Dr. [Machiela's practice] and potential harm to his patients ... if he were to ultimately prevail in the pending disciplinary proceeding." See Cunningham v. Agency for Health Care Admin., 677 So.2d 61, 61 (Fla. 1st DCA 1996). Section 456.072(2)(c), Florida Statutes (2008) specifically authorizes the Department of Health to tailor restrictions "necessary for the protection of the public health, safety, and welfare." Those restrictions include, but are not limited to, "rest...

...d by the Department of Health which were later consolidated. Because the Department failed to provide any documentation supporting an award of attorneys’ fees, we reverse the award of $65,134.31 in costs relating to attorneys’ fees awarded under section 456.072(4), Florida Statutes (2010)....

...2d DCA 2011), requires reversal of the award of $65,134.31 in costs relating to attorneys’ fees. “An award of attorneys’ fees must be supported by competent, substantial evidence by the attorney performing the services and by an expert as to the value of those services.” Id. at 762 . Section 456.072(4) permits the Board to impose “costs related to the investigation and prosecution of the case,” but requires the Board to “determine the amount of costs to be assessed after its consideration of an affidavit of itemized costs a...

...eorges , the Department failed to provide any documentation to support an award of attorneys’ fees. And because this “failure to abide by the statutory requirements” constitutes fundamental error, we reverse this portion of costs awarded under section 456.072(4)....

...2012 version that set a $500 fine and probation as the maximum allowable penalty. See Fla. Admin. Code R. 64B9-8.006(3)(f)3. (2012). Finally, even if the Board could proceed with the uncharged violation of section 464.018(1)(h), it still failed to consider the requirement in section 456.072(3)(b), Florida Statutes (2016), which states as follows: “[I]f the ground for disciplinary action is 5 the first-time violation of a practice act for unprofessional conduct, as used in [section] 464.018(1)(h) ....

...and told T.B. that he intended to engage in a sexual relationship with her. The Department averred that in doing so, Appellee violated section 458.331(1)(n), Florida Statutes, which authorizes imposition of disciplinary action against a physician for violating section 456.072(1)(v) and/or Florida Administrative Code Rule 64B8-9.008. Before the hearing on the Administrative Complaint, it became apparent that a central issue in the case was whether T.B. was Appellee’s patient when the incident occurred....

...ts, including attorney’s fees. We write only to explain our affirmance of the attorney’s fee award. Appellee, the Department of Health (Department), moved to assess the costs relating to the investigation and prosecution of Appellant pursuant to section 456.072(4), Florida Statutes (2010)....

...The motion to assess costs stated that if Appellant wished to file written objections to the assessment of costs, he should do so within ten days of the date of the motion, and specify the grounds for the objections and the specific elements of the costs to which he objected. § 456.072(4), Fla....

...d remanded for the imposition of a permitted penalty. Id. at 760-62 . Matters of statutory meaning and interpretation are questions of law. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla.2012). We have de novo review of legal issues. Id. Section 456.072(4) specifies the procedure the Board was required to use to assess the costs relating to the investigation and prosecution of Appellant....

...�� in a meaningful time and manner. Crosby v. Florida Parole Comm’n, 975 So.2d 1222, 1228 (Fla. 1st DCA 2008); Henderson v. Dep’t of Health, Bd. of Nursing, 954 So.2d 77, 80 (Fla. 5th DCA 2007). The Department complied with the plain language in section 456.072(4), and Appellant was on notice of his right to object in writing to the assessment of costs....

...Ail tests were performed by a qualified person employed by a company not owned by JHCS. At a later date, appellee brought this disciplinary action against Doll. For purposes of this appeal, only Count I of the administrative complaint remains relevant. In this count, the Department charged appellant with violating section 456.072(1)(c), Florida Statutes (2003)....

...The statute provides the following ground for discipline: Being convicted or found guilty of, or entering a plea of guilty or nolo conten-dere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee’s profession. § 456.072(1)(0), Fla....

...These cases demonstrate, in our view, that appellee did not err by concluding Doll’s conviction was “related to” the practice of chiropractic medicine or the ability to practice chiropractic medicine. We therefore affirm ap-pellee’s actions finding appellant in violation of section 456.072(l)(c) and revoking appellant’s license....

...t portions of the cost assessment. First, appellant argues the controlling statute did not allow attorneys’ fees. Next, appellant argues, as to certain costs assessed against him, the Department failed to provide sufficient supporting information. Section 456.072(4), Florida Statutes, controls the award of costs in this matter....

...ailed to provide the Board with enough detail to support $10,260.39 of the costs the Department claimed for time spent by its personnel, including attorney time spent. Accordingly, we reverse this portion of the costs award for failure of proof. See § 456.072(4), Fla....

...commended penalty. The Board’s revocation of Georges’ license was not authorized pursuant to rule 64B9-15.009(5)(a), and it constituted a violation of Georges’ due process rights. Similarly, the Board failed to follow the procedure outlined in section 456.072(4), Florida Statutes (2009), when it imposed costs of $15,703.17 against Georges. While section 456.072(4) permits the Board to impose “costs related to the investigation and prosecution of the case,” the Board is required to “determine the amount of costs to be assessed after its consideration of an affidavit of itemized *762 cos...

...Appellant failed to comply, and PRN notified the Department. USFCOP dismissed Appellant based on his failure to participate in PRN. The Department notified Appellant that in addition to his failure to comply with PRN recommendations, he violated section 456.072(1)(x), Florida Statutes, which required him to report his nolo contendere plea to the Department within 30 days of issuance. The Department filed an administrative complaint against him. Appellant timely submitted a response indicatin...

...n active Florida license at the time and therefore was not a “health care practitioner” subject to the Department’s jurisdiction. The 3 statutory basis for the Department’s complaint against Appellant was section 456.072, Florida Statutes, governing grounds for discipline, which provides in relevant part as follows: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken; ....

...ction of revoking his intern status removed him from the Department’s authority. The Department contends that it had jurisdiction over Appellant because he was a licensee when he pleaded nolo contendere to the criminal offense, and the language of section 456.072(2) does not require active licensee status to invoke the Department’s disciplinary authority....

...OP had the legal effect of revoking his pharmacy student intern status. However, Appellant’s emphasis on voluntary or involuntary inactivation of a license is a factual distinction that does not preclude Appellant from being considered a licensee. Section 456.072(1)(x), Florida Statutes, dictates that a licensee’s failure to timely report a plea of nolo contendere to the Department is a punishable offense....

...The governing statutes and regulations do not give regulated professionals control over regulatory authorities’ jurisdiction. The Department’s authority to implement a penalty is not limited to only those with an active license, but “any person guilty of the grounds set forth in subsection (1).” § 456.072(2), Fla. Stat....

...Because statutes authorizing revocation of licenses to practice a business or a profession are penal in nature, they must be strictly construed. See Taylor v. Dep’t of Pro. Reg., 534 So. 2d 782, 784 (Fla. 1st DCA 1988). Under the plain language of section 456.072(2), the Department had the authority to file the administrative complaint against Appellant....

...material errors in procedure, incorrect interpretations of law, or an abuse of discretion.” Henderson v. Dep’t of Health, Bd. of Nursing, 954 So. 2d 77, 81 (Fla. 5th DCA 2007) (quoting Malave v. Dep't of Health, Bd. of Med., 881 So.2d 682, 683 (Fla. 5th DCA 2004)). Section 456.072(1)(aa), Florida Statutes, provides that “[t]esting positive for any drug . . . on any confirmed preemployment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using the drug” is grounds for discipline for a healthcare professional. Section 456.072(2), Florida Statutes, states that, if a board finds that a person has violated subsection (1), it may enter an order suspending the person’s license or restricting the license as “necessary for the protection of the public health,...

...legitimate medical reason for using marijuana at the time of the drug screen. Competent, substantial evidence, in the form of the undisputed allegations in the Department’s administrative complaint, support the finding that Appellant violated section 456.072(1)(aa), Florida Statutes. Section 456.072(2) allows the suspension imposed on Appellant if a board finds that Appellant violated section 456.072(1)(aa), Florida Statutes. The Board correctly interpreted section 456.072 and did not abuse its discretion in suspending Appellant’s license until he is evaluated by IPN. AFFIRMED. KELSEY and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla....

...the aggravating factor that Hall presented a danger to the public. 1 1 The written order made no mention of deterrence. 2  On appeal, Hall first argues that revocation of her license was improper because section 456.072(3)(b) limits the penalty for a single violation of section 464.018(1)(h) to a non-disciplinary citation. However, section 456.072(3)(b) provides for the penalty of “a citation ....

...t to disciplinary action for various reasons including failure to maintain records to certain standards. It reads: (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2): ... (m) Failing to keep legibly written chiropractic medical records that identify clearly by name and credentials the licensed chiropractic physician render...

...her license in good standing. Section 460.413 is entitled “Grounds for disciplinary action, action by board or department.” The statute provides that failure to abide by its provision constitutes grounds for disciplinary action, “as specified in § 456.072(2).” This language contrasts with other parts of Chapter 460 that make certain conduct illegal....

...Thus, there is no indication that the Legislature intended that a failure 8 to maintain records to the standard in the regulations would render the treatment or service itself per se illegal. Moreover, section 456.072(2) leaves the interpretation and application of these provisions, certainly in the first instance, to the expertise of the board and department....

...we dismiss the appeal for lack of standing. See § 120.68(1)(a), Fla. Stat. (2018) ("A party who is adversely affected by final agency action is entitled to judicial review."). The Board filed an administrative complaint against Diaz-Ramirez alleging a violation of section 456.072(1)(bb), Florida Statutes (2013)....

...The Act simply codifies that good medical care does not require inquiry or record-keeping regarding firearms when unnecessary to a patient’s care. It is 1 Act of April 26, 2011, 2011 Fla. Laws 112 (codified at Fla. Stat. §§ 381.026, 456.072, 790.338). 4  Case: 12-14009 Date Filed: 07/25/2014 Page: 5 of 161 uncontroversial that a state may police the boundaries of good medical practice by routinely subjectin...

...5  Case: 12-14009 Date Filed: 07/25/2014 Page: 6 of 161 Rights and Responsibilities, Fla. Stat. § 381.026, to include several of the same provisions. The Act also amended Fla. Stat. § 456.072, entitled “Grounds for discipline; penalties; enforcement,” to provide for disciplinary measures for violation of the Act....

...should 7  Case: 12-14009 Date Filed: 07/25/2014 Page: 8 of 161 Violation of any of the provisions of the Act constitutes grounds for disciplinary action under § 456.072(2). § 456.072(1)(nn). Furthermore, “[v]iolations of the provisions of subsections (1)–(4) constitute grounds for disciplinary action under [Fla. Stat. §§] 456.072(2) and 395.1055.” § 790.338(8). Thus, if the Board of Medicine of the Florida Department of Health (the “Board”) finds that a practitioner has violated the Act, the practitioner faces disciplinary measures including fines, restriction of practice, return of fees, probation, and suspension or revocation of his or her medical license. § 456.072(2)....

...iry, record-keeping, discrimination, and harassment provisions of the Act, together with the provisions providing for discipline of practitioners who violate the Act. Wollschlaeger v. Farmer, 814 F. Supp. 2d 1367, 1384 (S.D. Fla. 2011) (citing §§ 456.072(1)(nn), (2), 790.338(1), (2), (5), (6), (8)). On June 2, 2012, the District Court permanently enjoined enforcement of the inquiry, record-keeping, discrimination, and harassment provisions of the Act—...

...summary judgment, that all four provisions facially violated the First Amendment, and that the inquiry, record-keeping, and harassment provisions of the Act were void for vagueness. Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1267–69 (S.D. Fla. 2012) (citing §§ 456.072(1)(nn), (2), 790.338(1), (2), (5), (6), (8)). The District Court found that Plaintiffs had standing to sue because Plaintiffs were engaging in self-censorship to avoid potential disciplinary action, which constituted a cognizable...

...record-keeping, inquiry, harassment, and discrimination provisions of the act, § 790.338(1), (2), (5), (6), and from enforcing § 790.338(8), to the extent that it provided that violations of § 790.338(1) and (2) constitute ground for disciplinary action, and § 456.072(1)(nn), to the extent that it provided that violations of § 790.338(1), (2), (5) and (6) constitute grounds for disciplinary action....

...The Department raised three issues on appeal, each challenges the correctness of the ALJ’s actions. We conclude the matter was impaired by a material error in procedure. The Department filed an administrative complaint with the Board, alleging Appellee, Windy Chun, violated section 456.072(1)(c), Florida Statutes (2007), by pleading nolo contendere to a crime relating to the practice of massage therapy....

...No one at the hearing raised any concerns about the authenticity or admissibility of the joint exhibit. In her recommended order, the ALJ sua sponte found that the already admitted joint exhibit was both unauthenticated and hearsay. As a result, the ALJ concluded that the Department failed to prove that Chun violated section 456.072(1)(c) and recommended that the Board dismiss the administrative complaint....

...Paul, 505 U.S. 377, 382 (1992). This particular principle looms large in this case, which concerns certain provisions of Florida’s Firearms Owners’ Privacy Act, Chapter 2011–112, Laws of Florida (codified at Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026)....

...Based on these six anecdotes, the Florida Legislature enacted FOPA, which did several things. First, the Act created Fla. Stat. § 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions.” Second, the Act added language to Fla. Stat. § 456.072 to provide disciplinary measures for violations of its provisions....

...§ 790.338 is reproduced in the appendix. 8  Case: 12-14009 Date Filed: 02/16/2017 Page: 9 of 90 constitute grounds for which . . . disciplinary actions . . . may be taken.” See § 456.072(1)(nn) (emphasis added). Statutorily, FOPA violations are punishable by a fine of up to $10,000 per offense, a letter of reprimand, probation, suspension, compulsory remedial education, or permanent license revocation. See § 456.072(2)(a)-(j); Joint Statement of Undisputed Facts, D.E....

...(because it uses the words “should refrain”), the same cannot be said for the record-keeping (“may not”), inquiry (“shall . . . refrain”), and anti-discrimination (“may not”) provisions. More fundamentally, the argument ignores § 456.072(1)(nn), which states (emphasis ours) that “violating any of the provisions” of § 790.338—i.e., even the so-called suggestive ones—“shall panel, see Wollschlaeger IV, 814 F.3d at 1175 n.7, we conclude that the plaintiffs have...

...The statute provides that a violation of any provision “shall constitute grounds for which disciplinary actions . . . may be 44  Case: 12-14009 Date Filed: 02/16/2017 Page: 45 of 90 taken.” Id. at § 456.072(1)(nn)....

...Violators of the Act risk suspension or permanent revocation of their medical licenses; restriction of their practices to certain settings, conditions, or numbers of hours; fines of up to $10,000 for each separate offense; probation; refunds of fees billed; and remedial education, among others. Id. at § 456.072(2)(b)–(d), (f), (i)–(j)....

...Nothing herein shall prevent an insurer from considering the fair market value of firearms or ammunition in the setting of premiums for scheduled personal property coverage. (8) Violations of the provisions of subsections (1)–(4) constitute grounds for disciplinary action under ss. 456.072(2) and 395.1055. 90 

...This deference reaches its apex in the examination room where patients are in a position of relative powerlessness. Patients must place their trust in the physicians’ guidance and submit to the physicians’ authority. 1 2011 Fla. Laws 112 (codified at Fla. Stat. §§ 381.026, 456.072, 790.338). 4  Case: 12-14009 Date Filed: 12/14/2015 Page: 5 of 82 With this great authority comes great responsibility....

...§ 790.338, entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended the Florida Patient’s Bill of Rights and Responsibilities, Fla. Stat. § 381.026, to include several of the same provisions. The Act also amended Fla. Stat. § 456.072, entitled “Grounds for discipline; penalties; enforcement,” to provide for disciplinary measures for violation of the Act....

...mber of the 7  Case: 12-14009 Date Filed: 12/14/2015 Page: 8 of 82 Violation of any of the provisions of the Act constitutes grounds for disciplinary action under § 456.072(2). Fla. Stat. § 456.072(1)(nn). Furthermore, “[v]iolations of the provisions of subsections (1)–(4) constitute grounds for disciplinary action under [Fla. Stat. §§] 456.072(2) and 395.1055.” Fla....

...Thus, if the Board of Medicine of the Florida Department of Health (the “Board”) finds that a physician has violated the Act, the physician faces disciplinary measures including a fine, restriction of practice, return of fees, probation, and suspension or revocation of their medical license. Fla. Stat. § 456.072(2)....

...record-keeping, inquiry, harassment, and discrimination provisions of the Act, § 790.338(1), (2), (5), (6), and from enforcing § 790.338(8), to the extent that it provided that violations of § 790.338(1) and (2) constitute grounds for disciplinary action, and § 456.072(1)(nn), to the extent that it provided that violations of § 790.338(1), (2), (5) and (6) constitute grounds for disciplinary action....

...The following counts are relevant to this appeal. Count I alleged that Dasilva practiced beyond the scope permitted by law, or performed professional responsibilities which he knew or had reason to know he was not competent to perform, in violation of section 456.072(1)(o), Florida Statutes (2021), by independently performing liposuction, VASER liposuction, Brazilian Butt Lifts, abdominoplasty, breast augmentation, and blepharoplasty procedures. Count IV asserted that Dasilva disseminated or...

...Determination That Dasilva Accepted and Performed Professional Responsibilities He Knew, or Had Reason to Know, He Was Not Competent to Perform A. The Relevant Statutes and Administrative Rules as to Count I In Count I, Davila was charged with violating section 456.072(1)(o), Florida Statutes (2021), which provides for discipline of a licensee for “[p]racticing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or...

...certain delegated tasks.”). B. Discussion The Board correctly interpreted the law when it found that Dasilva practiced outside the scope of his physician assistant license and performed complex plastic surgeries he was not competent to perform. Section 456.072(1)(o) authorizes discipline of a licensee for “[p]racticing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee...

...in this argument is that Florida law prohibits a physician assistant from performing professional responsibilities he knows or should know he is not competent to perform. Mere delegation does not automatically confer competency within the meaning of section 456.072(1)(o). Although no statute or rule expressly prohibits a physician assistant from performing the plastic surgeries at issue, section 458.347(4)(h)’s plain language requires that any services delegated to a physician assistant mu...