Florida/Georgia Personal Injury & Workers Compensation

...tment. Both actions were part of the overall trade reflected in the plea agreement. Second, if Hoffer had not relinquished his license, it likely would have been revoked by the Florida Board of Medicine, anyway. See Fla. Stat. Ann. § 458.331(1)(c) and (q). Whether characterized as “voluntary” or not, we do not think that Hoffer's loss of medical license is a valid basis for departure....

...VII of the indictment. Both actions were part of the overall trade reflected in the plea agreement. Second, if Hoffer had not relinquished his license, it likely would have been revoked by the Florida Board of Medicine, anyway. See Fla. Stat. Ann. § 458.331(1)(c) and (q). Whether characterized as "voluntary" or not, we do not think that Hoffer's loss of medical license is a valid basis for departure....

...f the public and when the potential for such harm is recognizable and clearly outweighs any anticompetitive impact which may result from licensing. The statutes that specifically regulate the practice of medicine also provide guidance on this issue. Section 458.331, Florida Statutes (1991), [2] enumerates grounds for disciplinary action against a physician....

...y and, thus, confers no enforceable rights on appellants based upon it. AFFIRMED. DELL and STEVENSON, JJ., concur. NOTES [1] This statute was renumbered as section 456.053, Florida Statutes. Ch. 00-160, § 77, Laws of Fla. [2] The current version of section 458.331(1)(i) retains the same language as the 1991 version of the statute. See § 458.331(1)(i), Fla....

...Page, Senior Attorney, Agency for Health Care Administration, Tallahassee, for Appellee. SAWAYA, J. Howard Gross, M.D., appeals the final order of the Board of Medicine (the Board) [1] concluding that Gross deviated from the standard of care defined by section 458.331(1)(t), Florida Statutes (2000)....

...The injection of air resulted in the patient's death despite Gross's life-saving efforts. The Department alleged that the air injection was a failure on the part of Gross to practice medicine with the level of care, skill and treatment required by section 458.331(1)(t)....

...njector is loaded. 27. The "standard of care" does not require the physician to watch the loading of dye or the expulsion of air from the syringe in the loading process. The ALJ recommended the Board enter an order finding that Gross did not violate section 458.331(1)(t)....

...The ALJ's recommended order was then submitted to the Board for adoption. At the Board's hearing, several of the board members took issue with the ALJ's finding that Gross's performance did not fall below the appropriate standard of care and did not constitute a violation of section 458.331(1)(t). Thereafter, the Board issued its final order finding that Gross's performance was below the applicable standard of care and that he did violate section 458.331(1)(t)....

...Gross appeals from this order. The issue we must resolve is whether the Board abused its discretion in rejecting the ALJ's findings of fact and substituting its findings and conclusions that Gross breached the applicable standard of care standard and the provisions of section 458.331(1)(t)....

...In the instant case, the ALJ rendered a recommended order with comprehensive and detailed findings of fact all of which the Board concedes are based upon competent substantial evidence. Specifically, the ALJ, in finding that Gross did not breach the applicable standard of care and therefore did not violate section 458.331(1)(t), *1004 made the following findings in the recommended order: 38....

...The Board is not permitted to reject or modify the findings made by the ALJ because it disagrees with the ALJ's findings and it may not weigh the credibility of the witnesses and draw a different conclusion. The Board justifies its rejection of the ALJ's finding that Gross did not violate the standard of care or section 458.331(1)(t) by reliance on the deference rule....

...it its ultimate conclusion. Hence, there is nothing further for the Board to do except enter an order in accordance with the ALJ's recommendation. Finally, the Board, noting that the findings that Gross did not violate the standard of care or breach section 458.331 are labeled conclusions of law in the recommended order, argues that these conclusions are contrary to a proper interpretation of the statute....

...Conclusion The ALJ heard all of the evidence and testimony presented by both parties and rendered a very lengthy and detailed order containing findings of fact. Specifically, the ALJ found that Gross did not breach the applicable standard of care and did not violate section 458.331(1)(t). The Board has conceded in these proceedings that all of the findings made by the ALJ, including the finding that Gross did not violate the applicable standard of care or violate section 458.331(1)(t), are supported by substantial, competent evidence....

...Similarly, the Board of Medicine and this court are prohibited from reweighing the conflicting evidence considered by the ALJ in resolving disputed issues of fact. As the Board concedes in its brief, each of the ALJ's findings, including the finding that Dr. Gross did not deviate from the standard of care defined by section 458.331(1)(t), Florida Statutes (2000), are supported by substantial competent evidence....

...Gross to ensure that the injector was properly loaded with dye before utilizing it. Apparently, the ALJ did not consider Hippocrates's proscription to "do no harm" as establishing a reasonable standard of care to be followed by medical practitioners in Florida or encompassed within the statutory standard found in section 458.331(1)(t)....

...NOTES [1] The Board of Medicine is established, via section 20.43(3)(g)4., Florida Statutes (2000), as part of the Division of Medical Quality Assurance, which itself is a division of the Department of Health. § 20.43(3)(g), Fla. Stat. (2000). [2] Section 458.331(1)(t) provides in pertinent part that a medical doctor may be subject to disciplinary actions for "the failure ... to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances." § 458.331(1)(t), Fla....

...of Professional Regulation, Tallahassee, for appellee. WIGGINTON, Judge. Appellant, Dr. Johnston, appeals a final order of the Board of Medical Examiners (Board) which rejected the hearing officer's recommendation that charges against appellant *941 of violation of sections 458.331(1)(q) and (t), Florida Statutes, be dismissed. Appellant was charged by administrative complaint with thirteen counts of violations of section 458.331(1), Florida Statutes, concerning the inappropriate prescribing of controlled substances to four patients. At the hearing, eight of the thirteen counts were dismissed, leaving five counts to be prosecuted as to violations of section 458.331(1)(q) and (t)....

...He served four years as Chief of the Family Practice Department at the Naval Regional Medical Center in Orlando. He is now engaged in private practice. He never before had been the subject of an investigation by the Department of Professional Regulation (Department) until the filing of the charges in this case. Section 458.331(1)(q), Florida Statutes, provides for the taking of disciplinary action against a physician for: Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice....

...egend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent. Section 458.331(1)(t) provides for disciplinary action to be taken against a physician for: Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances....

...d in the complaint were neither excessive nor inappropriate, especially considering the severe conditions of each of the patients. He concluded that the evidence presented by the department was not substantially sufficient to establish violations of section 458.331(1)(q) or (t), especially in light of Bowling v....

...ing acceptable." The board accepted the expert testimony of the department's witness as an accurate statement of the proper policy in prescribing narcotics to non-terminal patients. Thereupon, the board concluded that appellant had violated sections 458.331(1)(q) and (t), Florida Statutes, and placed appellant on probation for a period of one year, a condition of which appellant is required to make semiannual appearances before the board....

...uirements of section 458.320. A physician who violates the financial responsibility requirements in section 458.320 is subject to significant administrative penalties, including the possible revocation of his or her license and other discipline. See § 458.331(1)(nn), Fla....

...This is a recognized complication which, although rare, can occur when performing this procedure. The Hearing Officer concluded that Dr. Gershanik violated section 458.1201(1)(m), Florida Statutes (1977), [1] replaced in chapter 79-302, Laws of Florida, by section 458.331(1)(t), Florida Statutes (1979). [2] With regard to Rebecca Glover, the Hearing Officer decided that Dr. Gershanik violated section 458.1201(1)(m), Florida Statutes (1977) and section 458.331(1)(t), Florida Statutes (1979), when he acted negligently and/or unprofessionally in deciding to perform a plastic repair on her forehead, lip and knees, while she was under general anesthesia, which was contraindicated by the patient...

...edical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether committed within or without this state. [2] Section 458.331(1)(t) provides: Grounds for disciplinary action; action by the board....

...not whether the grant of authority is specific enough." Id. (emphasis in original). Accordingly, we must examine the ALJ's conclusions pursuant to these directives. 1. Rule 64B8-9.009(4)(b) As authority for rule 64B8-9.009(4)(b), the Board relied on section 458.331(1)(v), Florida Statutes (1999), which authorizes the Board to establish by rule standards of practice and standards of care for particular practice settings, including, but not limited to, education and training, equipment and supplie...

...d consent, and policy and procedure manuals. (Emphasis added.) The ALJ concluded that this language did not provide rulemaking authority for the transfer agreement provision in rule 64B8-9.009(4)(b) essentially *254 because the grant of authority in section 458.331(1)(v) was not specific enough. Section 458.331(1)(v) clearly grants the Board authority to require by rule that physicians performing level II office surgeries who do not have staff privileges to perform the same procedure at a licensed hospital within reasonable proximity have, i...

...As Save the Manatee makes clear, whether the grant of authority is specific enough is beside the point. Accordingly, we conclude that the ALJ erred when he held that rule 64B8-9.009(4)(b) was invalid pursuant to section 120.52(8)(b) and (c). 2. Proposed Rule 64B8-9.009(6)(b)1.a. (Staff Privileges) The Board also relied on section 458.331(1)(v) as authority for that portion of proposed rule 64B8-9.009(6)(b)1.a. which allows physicians to perform level III office surgeries if they have staff privileges at a licensed hospital within reasonable proximity. The ALJ concluded that section 458.331(1)(v) did not provide rulemaking authority for this provision for essentially the same reason that he concluded it did not provide authority for rule 64B8-9.009(4)(b)—because section 458.331(1)(v) is not specific enough....

...Here, it is apparent that this portion of proposed rule 64B8-9.009(6)(b)1.a. is intended to make having staff privileges one of several optional methods by which a physician might establish his or her credentials to perform level III office surgery. Section 458.331(1)(v) clearly gives broad, unqualified, rulemaking authority to the Board to establish "standards of practice and standards of care for particular practice settings." It does not specify what those standards should be, or how they should be established, leaving such matters to the discretion of the Board....

...actices medicine in Tijuana, Mexico, who is not licensed to practice medicine in the United States, and who — other than acting as a guest resident at Kings County Hospital in Brooklyn, New York — has never practiced medicine in the United States. Section 458.331(1), Florida Statutes (1979) empowers the Board of Medical Examiners to revoke, suspend or otherwise discipline a licensed medical doctor for: (h) Failing to perform any statutory or legal obligation placed upon a licensed physician....

...(u) Performing any procedure or prescribing any therapy which, by the prevailing standards of medical practice in *333 the community, would constitute experimentation on a human subject, without first obtaining full, informed, and written consent. The hearing officer concluded that respondent had violated: (a) Section 458.331(1)(h) by failing to inform Ms. Burroughs or Mr. Kirk, in writing, that Laetrile had not been approved as a treatment or cure by the Food and Drug Administration of the United States Department of Health and Human Services. (b) Section 458.331(1)( l ) by making false representations to Ms....

...Rogers, 81 So.2d 658, (Fla. 1954). Additionally, the hearing officer concluded that respondent "deviated from the principles of metabolic therapy by simultaneously administering chemotherapy, and by prescribing whole body hyperthermia to Ms. Burroughs." (d) Section 458.331(1)(u) by treating Ms....

...Upon objections filed to this recommendation, the Board of Medical Examiners rejected the proposed penalty as inappropriate under the circumstances and ordered that appellant's medical license be revoked. This penalty is within the authority granted to the Board of Medical Examiners by section 458.331 for violations of that statute....

...UPCHURCH, Jr., J., concurs in part, dissents in part, with opinion. FRANK D. UPCHURCH, Jr., Judge, concurring in part, dissenting in part. I concur with the majority opinion that competent substantial evidence exists that Dr. Clark violated sections 458.331(1)(h), ( l ), (t) and (u), but would remand for reconsideration of the penalty imposed. I believe the penalty imposed should not be sustained for the following reasons. Section 458.331(1) contains numerous grounds for which disciplinary action may be taken against a licensed physician. Section 458.331(2) provides: When the Board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties: (a) Refusal to certify to the Department an application for licensure....

...to reexamination, or to work under the supervision of another physician. In an apparent effort to ensure that the punishment fit the particular violation and that some degree of uniformity in treatment exist among violators, the legislature added in section 458.331(4) that: The board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations....

...icense. The Board has adopted "guidelines" for disciplinary actions brought pursuant to Chapters 455 and 458, Florida Statutes in Ch. 21M-20, Florida Administrative Code. Rule 21M-20.01 provides: (1) For violations of Section 455.221(1)(a), Sections 458.331(1)(d), 458.331(1)(e), 458.331(1)(f), 458.331(1)( o ), 458.331(1)(p), 458.331(1)(aa) and 458.331(1)(bb), F.S....

...de, and an inability to practice medicine by reason of the use of narcotics and mental illness. Maskaron v. Department of Professional Regulation, Board of Medical Examiners, 450 So.2d 1242 (Fla. 2d DCA 1984). 3. Suspension for violation of Sections 458.331(1)(t) and 458.331(1)(q) relating to failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician and inappropriate prescribing of controlled substances....

...Undoubtedly the Board does and should consider some offenses more reprehensible than others. However, the "guidelines" which the Board has adopted give no guidance to the profession, to the hearing examiners who recommend penalties, or to the Board itself. By enacting Section 458.331(4) the Legislature sought to avoid a completely arbitrary imposition of penalties....

...Because the "guidelines" give us no guidance, however, I cannot say the penalty is unduly harsh. I would reverse and remand for reconsideration of the penalty after adoption of effective guidelines and application of those guidelines in accordance with the legislative mandate of section 458.331(4). NOTES [1] Patient Kirk was terminally ill and had a history of choriocarcinoma of the larynx. The only allegation of wrongdoing with regard to Kirk was Clark's failure to obtain the affidavits required by Florida Statute § 458.333 and 458.331(1)(a), discussed in detail infra....

...5th DCA 1983); Hegeman-Harris Co., Inc. v. All State Pipe Supply Co., Inc., 400 So.2d 1245 (Fla. 5th DCA), review dismissed, 411 So.2d 380 (Fla. 1981). [1] There is no § 458.227 in the Florida Statutes and it is obviously a misprint in the Florida Administrative Code. It should read § 458.331 as in subsection (1) of the Rule.

...[5] However, the holding in NME Properties was based upon the exclusion of nursing homes from definitions of "health care provider" in sections 766.101(1)(b) and 766.105(1)(b), Florida Statutes (1991). Other statutory definitions of this same or virtually identical terms are broader in scope. For example, section 458.331(1)(i), proscribing payment or acceptance of referral fees by physicians, does include nursing homes among "providers of health care goods and services." In sum, plaintiff cannot have it both ways....

...the agreement, itself, impermissibly provided for payment of a percentage of the revenue the management services and practice enhancement would generate and, thus, constituted an indirect method of fees for patient referral in violation of sections 458.331 and 817.505, Florida Statutes (2001)....

...Agency for Health Care Admin., 669 So.2d 1160 (Fla. 5th DCA 1996)(holding that salary based on a percentage of previous year's revenue and a year-end bonus based on current year's revenues would each be in violation of the prohibition on fee-splitting). Florida Statutes §§ 458.331(1)(i) and 817.505(1)(a) prohibit any split fee arrangement. Section 458.331(1)(i) provides that it is grounds for disciplinary action if a medical provider is: paying or ......

...The agreement provided that the company would be paid, in part, an annual performance fee equal to 30% of the group practice's net income each year. Id. at 397. The board, whose decision was upheld by the First District, held that the agreement was a split-fee agreement in violation of section 458.331(1)(i), in that the group practice was required to pay a specified percentage of their net income without regard to the cost of providing services supplied by the company, and without regard to whether the income is from services performed either by the group practice or the group practice's supervision....

...[Boedy's] reliance on the wording "physician practicing in this state" found in Section 458.301, Florida Statutes, to support this jurisdictional claim is undercut not only by the language used in the last sentence of that same section but also by the use of the phrase "any person" in Section 458.331(2), Florida Statutes....

...ver to induce the referral of patients or patronage from a health care provider or health care facility." Finally, the Order declared that payment of fees which are based on revenue generated, at least in part because of referrals, is a violation of section 458.331(1)(k), Florida Statutes....

...action against him as a licensee under the Medical Practice Act. The complaint asserted that petitioner suffered from a mental or emotional *216 illness which rendered him "unable to practice medicine with reasonable skill and safety" as provided in section 458.331(1)(s), Florida Statutes (1981)....

...nable skill and safety." Petitioner sought a protective order to avoid the examination requirement, based in part, on the claim that his fifth amendment privilege against self-incrimination would be violated by the mental examinations required under section 458.331(1)(s), Florida Statutes (1981)....

...The district court, finding the question to be of great public importance, certified the following question to this Court: Whether the fifth amendment privilege against compelled self-incrimination applies to disciplinary proceedings initiated under section 458.331(1)(s), Florida Statutes, to determine whether a physician is unable to practice medicine with reasonable skill and safety to patients as a result of a mental or physical condition. Id. The district court correctly answered the question in the negative, and we approve its decision. Section 458.331(1)(s), Florida Statutes (1981), addresses the act of: (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition....

...Petitioner relies upon this Court's holding in State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973), in support of his argument that the fifth amendment privilege against compelled self-incrimination applies to proceedings initiated under section 458.331(1)(s), Florida Statutes (1981). Petitioner asserts that section 458.331(1)(s) is unconstitutional under Vining....

...r threat of license forfeiture, and that the potential penalty of license suspension or revocation was sufficiently severe to invoke the constitutional protections against compulsory self-incrimination. Id. at 492. Recognizing that proceedings under section 458.331(1)(s), Florida Statutes (1981), are limited to determinations of fitness to practice, the district court distinguished Vining, which involved penal sanctions which were sought due to professional misconduct....

...purposes of the fifth amendment privilege against compelled self-incrimination and that the proceedings merely seek to determine whether petitioner is "able to practice medicine with reasonable skill and safety." Id. at 506. The district court found section 458.331(1)(s), Florida Statutes (1981), to be constitutional....

...mental illness. Illness, particularly mental illness, although often capable of being proved by extrinsic evidence, is considered more susceptible to proof by evidence based on interviews with the defendant and requiring his cooperation. Id. at 821. Section 458.331(1)(s) does not deal with an issue of guilt or innocence....

...So long as state authorities do not derive any imputation of guilt from a claim of the privilege or use the testimonial revelations gleaned from the physician in any other proceeding, there occurs no harmful incriminatory abuse of the information extracted from the physician. Under section 458.331(1)(s), Florida Statutes (1981), neither the testimony received from a physician, nor the orders subsequently entered on the basis of that testimony may be used against the physician in any other administrative, civil or criminal proceeding....

...strate his fitness, and may order his discharge if he declines. Accordingly, we approve the decision of the district court and hold that the fifth amendment privilege against compelled self-incrimination does not apply to proceedings initiated under section 458.331(1)(s), Florida Statutes (1981)....

...tment. In this petition to review nonfinal agency action, [2] Dr. Doe seeks review of the Department's order denying his motion to quash the subpoena. The outcome of this case turns upon the interpretation of seemingly conflicting statutes, sections 458.331(9) and 458.337(3), Florida Statutes (2005), and sections 395.0193(8) and 766.101(5), Florida Statutes (2005). When read together, however, the statutes can be reconciled to promote the legislative intent behind each statute. Accordingly, we conclude that sections 458.331(9) and 458.337(3) permit the Department to subpoena this information for the purposes of its investigation of Dr....

...Our limited record does not contain a document from the hospital detailing the basis for its investigation of Dr. Doe. However, when the Department notified Dr. Doe of its investigation, it indicated that the allegations involved a possible violation of sections 456.072(1)(y) and 458.331(1)(s), Florida Statutes (2005)....

...and the [B]oard [of Medicine] in disciplinary proceedings. The records shall otherwise be confidential and exempt from s. 119.07(1). These records shall not be subject to discovery or introduction into evidence in any administrative or civil action. Section 458.331 entitled "Grounds for disciplinary action; action by the board and department" sets forth the grounds upon which the Department may discipline a physician....

...pursuant to chapter 120"); § 456.073(5) (providing that the complaint is subject to a "formal hearing before an administrative law judge . . . pursuant to chapter 120"); § 456.073(7) (permitting "judicial review . . . pursuant to s. 120.68"); see also § 458.331 (describing disciplinary action taken against physician under that section as an "administrative action against a physician"). To read these statutes in the unqualified manner that Dr. Doe suggests, however, would ignore the provisions in sections 458.331(9) and 458.337(3), which clearly envision the Department's access to some peer review records in physician disciplinary proceedings....

...ic exposure of information, that will permit the discipline of physicians necessary to protect the public health and safety — the statutes must be read in pari materia to conclude that the Department has access to peer review records under sections 458.331(9) and 458.337(3)....

...to the Department. We disagree. In Bayfront, the agency sought peer review records not in a physician disciplinary proceeding, but as part of its role in risk management review as set forth in section 395.0197, Florida Statutes (1997). Thus sections 458.331(9) and 458.337(3) were not implicated in the court's analysis....

...Avron Bernstein, (Tallahassee), for appellee. Before GERSTEN, RAMIREZ, and WELLS, JJ. WELLS, Judge. Eric M. Patz, M.D., appeals from a final administrative order of the State Board of Medicine granting the Department of Health's motion for default and sanctioning Patz for violations of section 458.331 of the Florida Statutes....

...tted to continue on the orthopedic surgery staff. In the end, appellant submitted his resignation immediately prior to his Lakeland General disciplinary hearing. The basis for the instant disciplinary proceedings was appellant's alleged violation of section 458.331(1)( l ), Florida Statutes (1983), which prohibits "[m]aking deceptive, untrue, or fraudulent representations in the practice of medicine......

...Department of Professional Regulation, 534 So.2d 782, 784 (Fla. 1st DCA 1988); Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977). It is clear from our analysis that the Board ignored this rule of construction. Section 458.331(1)( l ), Florida Statutes (1983), prohibits the making of "deceptive, untrue, or fraudulent representations in the practice of medicine." Throughout chapter 458, the phrase "practice of medicine" is defined as "the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition." § 458.305(3), Fla. Stat. (1983). Given this definition and the language of section 458.331(1)( l ), it is of no consequence that the Board found appellant's deceptive applications for staff privileges bore some relation to his practice or attempt to practice medicine....

...89-374, § 11, Laws of Fla. At present, the following constitutes a valid basis for disciplinary action: (k) Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. § 458.331(1)(k), Fla....

...icine or employed a trick or scheme in the practice of medicine, or prescribed controlled substances without good faith and outside the course of his professional practice. The Petitioner did establish by clear and convincing evidence, violations of Section 458.331(1)(n), Florida Statutes, in that the Respondent failed to keep written medical records justifying the course of treatment of John Marsden and Carol Rosen, as alleged at Counts 8 and 12 of the Administrative Complaint." A doctor testified at the hearing below that he had examined Dr....

...o discipline him for acts of professional misconduct committed prior to his licensure. We agree and reverse. The Department of Professional Regulation ("Department") filed an administrative complaint against appellant charging him with violations of Section 458.331, Florida Statutes (1987), which enumerates the grounds for disciplinary action against a physician. The complaint included an allegation that appellant was unable to practice medicine with reasonable skill and safety contrary to Section 458.331(1)(s)....

...volving moral turpitude. Unlike appellant, Cirnigliaro was not disciplined for any past misconduct but rather was relieved of his certificate due to his present and continuing disqualification for certification. This is comparable to a finding under section 458.331(1)(s) that a physician is unable to practice with reasonable skill and safety, a finding that the Board specifically declined to make as to appellant....

...Accordingly, we reverse and remand with directions that the Board vacate its final order and enter an order dismissing the charges against appellant. THOMPSON and BARFIELD, JJ., concur. NOTES [1] The Department did not charge appellant with a violation of Section 458.331(1)(a), which prohibits "[a]ttempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentation, or through an error of the department or the board." [2] Appellee did not take exception to any of the hearing officer's findings of fact....

...ces had not been actually performed. The complaint alleged that appellant's nolo contendere plea was accepted and that he was placed on five years probation, with adjudication withheld. The complaint further stated that appellant was in violation of section 458.331(1)(c), Florida Statutes (1983), which provides that any plea of nolo contendere shall be considered a conviction for purposes of chapter 458, Florida Statutes (1983), regulating the medical profession. [1] The complaint stated that, because appellant was presumed to have been convicted of a crime which related directly to the practice of *1117 medicine or the ability to practice medicine, he was subject to disciplinary action pursuant to section 458.331(2)....

...The testimony further showed that appellant considered his nolo contendere plea to be a plea of convenience in order to avoid the hassle and risks involved in a criminal trial. At the conclusion of appellant's presentation, the Board's attorney advised that since appellant had pled nolo contendere to the criminal charges and section 458.331(1)(c) provides that a nolo contendere plea "shall be considered a conviction," appellant was guilty as a matter of law of violating the standards of professional conduct and was thus subject to disciplinary action....

...tled on punishment of one year suspension of appellant's license with nine months suspension stayed and probation for five years. Appellant was granted a stay of this final order pending appeal. Appellant makes two constitutional arguments, (1) that section 458.331(1)(c) violates the separation of powers doctrine in article II, section 3, of the Florida Constitution, because it impermissibly usurps the authority of the Supreme Court to make rules of court, and (2) that section 458.331(1)(c) violates due process and equal protection because it has no rational basis and does not bear a reasonable relation to a permissible legislative objective....

...e and the trial court withheld adjudication and placed him on probation, appellant argues that he was not "convicted" and could not suffer any collateral consequences because of his nolo contendere plea. Thus, appellant argues, because section *1118 458.331(1)(c) purports to convert a nolo contendere plea into a judgment of conviction and attaches collateral consequences to such plea, this section is in effect an amendment to the criminal rules and is violative of the separation of powers doctrine....

...tandards for substantive due process only if it "bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary, or oppressive." State v. Walker, 444 So.2d 1137, 1139 (Fla. 2d DCA 1984). Appellant argues that section 458.331(1)(c) violates these precepts of due process because the presumption that a nolo contendere plea establishes a conviction and violation of the minimum standards of professional conduct, without any consideration of actual culpability,...

...If he chooses to plead nolo contendere to avoid the risk of criminal trial, as was done in this case, he is thereby deprived of the right to defend the charge against him before the Board of Medical Examiners. In the present case appellant contends the Board considered section 458.331(1)(c) to establish a conclusive presumption of guilt by reason of the nolo plea, and considered the reasons, facts, and circumstances surrounding his pleading nolo contendere only in relation to potential mitigation of his punishment....

...of the presumption that he stood convicted of a crime and thus he was guilty of the criminal charges forming the basis of this disciplinary action. Appellant's arguments have caused us to view with substantial concern the constitutional validity of section 458.331(1)(c) as it was construed and applied by the Board of Medical Examiners in this case....

...surrounding appellant's nolo contendere plea and his reasons for entering such plea would be relevant only to potential mitigation of the punishment to be imposed. We do not reach the constitutional arguments, however, because we must first construe section 458.331(1)(c) in any permissible way that will allow it to withstand constitutional attack. Rich v. Ryals, 212 So.2d 641 (Fla. 1968). We find that section 458.331(1)(c) is clearly constitutional by construing the word "shall" in the last sentence of that subsection as permissive rather than mandatory in meaning....

...his innocence of the underlying criminal charges by explaining the reasons and circumstances surrounding his plea of nolo contendere, and thereby attempt to convince the Board that he is not guilty of a *1119 crime in violation of the provisions of section 458.331(1)(c)....

...Because the Board has erroneously construed and applied the pertinent statutory provision in reaching its decision; the final order is reversed and the case is remanded for further proceedings consistent herewith. REVERSED and REMANDED. WENTWORTH and BARFIELD, JJ., concur. NOTES [1] Section 458.331(1)(c) reads as follows: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: * * * * * * (c) Being convicted or found guilty, regardless of adjudication, of a cri...

...Pursuant to an investigation conducted by Florida's Department of Business and Professional Regulation and appellee, the Agency for Health Care Administration, appellee filed an administrative complaint against Dr. Borrego, alleging that he violated section 458.331(1)(c), Florida Statutes, which authorizes disciplinary action against a physician who is found to have been convicted of a crime "which directly relates to the practice of medicine or to the ability to practice medicine." Following an administrative hearing, the Board of Medicine concluded that Dr. Borrego violated section 458.331(1)(c), and ordered him to pay a $5,000 fine to the Board, reprimanded him and suspended his license for 18 months, to be followed by three years of probation....

...Indeed, section 458.301, Florida Statutes (1993), provides that the purpose for enacting chapter 458, which contains the disciplinary statute at issue, is to protect the public from practitioners who cannot comply with "minimum requirements for safe practice." Based on the above authorities, we conclude that section 458.331 was designed to serve the public welfare, and, because the sanction imposed against Dr....

...rds while the department's medical witness did not review the records or familiarize himself with the patients' treatment. In the conclusions of law, the hearing officer first addressed Van Ore's prescription practices for the patients as covered by section 458.331(1)(g), (h), (q) and (t), Florida Statutes (1985) and section 893.05(1), Florida Statutes (1985)....

...(citations omitted) With regard to the charges associated with Van Ore's use of physician's assistants, the hearing officer found that no evidence was presented concerning one of the assistants and that the only violation established *885 by the department was under section 458.331(1)(aa), Florida Statutes (1985), because Van Ore had furnished "presigned prescription blanks to Gary Chase as a physician's assistant to be used in his absence." The officer recommended that the Board of Medical Examiners find Van Ore guilty of violating section 458.331(1)(aa) and that the penalty of a written reprimand be imposed....

...Chronologically, proceedings between The Department of Professional Regulation, Board of Medical Examiners (Agency) and Hooshang Kadivar, M.D. (doctor) began February 24, 1982, when the Agency filed an administrative complaint against the doctor, charging him with violation of four provisions of section 458.331(1), Florida Statutes (1982)....

...injunctive order in all respects. Accordingly, we find no support for the trial judge's conclusion that the Board was guilty of willful contempt. The Agency contends that the questions remaining in the trial court vis-a-vis the constitutionality of section 458.331(1)(c), Florida Statutes, are res judicata because this court has already ruled on that question in a proceeding between these same parties....

...However, as of this time that defense has not been raised in the trial court, since it is an affirmative defense and the Agency has not yet filed its answer. We recognize that, in the appeal from the final Agency order in the administrative proceeding, one of the doctor's points on appeal was the unconstitutionality of section 458.331(1)(c) and that this court's opinion expressly stated it found no merit to the points on appeal....

...*634 Lisa Pease, Senior Appellate Attorney, Agency for Health Care Administration, Tallahassee, for Appellee. DAVIS, J. Appellant, Benjamin Paz Ocampo, M.D. (Ocampo), timely appeals a final administrative order of Appellee, Florida Department of Health (DOH), disciplining his license for violations of sections 458.331(1)(b) and (kk) of the Florida Statutes. Because we find Ocampo was improperly charged with violations of these sections, we reverse the final order. In an administrative complaint, DOH alleged that Ocampo violated section 458.331(1)(b), Florida Statutes, by having a license or the authority to practice medicine revoked, suspended, or other-wise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agenc...

...uman Services] excluded [Ocampo] from participation in the Medicare, Medicaid and all Federal health care programs as defined in section 1128B(f) of the Social Security Act for a period of fifteen (15) years. DOH further alleged that Ocampo violated section 458.331(1)(kk), Florida Statutes, by failing to report the exclusion in writing to the Board of Medicine (the Board) within thirty days of learning of the exclusion....

...da Statutes. At the hearing before the Board, Ocampo argued that the exclusion of a physician by the federal government from participation in federal health care programs was not action by the licensing authority of any jurisdiction as prohibited by section 458.331(1)(b), Florida Statutes....

...An agency's interpretation of the statute it administers is entitled to deference. Id. However, an appellate court can overturn the agency's interpretation of a statute if the interpretation is clearly erroneous. Department of Natural Res. v. Wingfield Dev. Co., 581 So.2d 193 (Fla. 1st DCA 1991). The plain language of section 458.331(1)(b), Florida Statutes (1999), provides that a violation of the Medical Practice Act occurs when a physician's "license or the authority to practice medicine [is] revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions." Similarly, a violation of section 458.331(1)(kk), Florida Statutes (1999), occurs when a physician fails to inform the Board of the action referred to in section 458.331(1)(b), Florida Statutes (1999)....

...1st DCA 1990). In Elmariah, this Court held that false statements made by a physician on an application for staff privileges at a hospital did not constitute "making deceptive, untrue, or fraudulent representations in the practice of medicine" as proscribed by section 458.331(1)( l ), Florida Statutes (1983)....

...the course of his practice, whether committed within or without this state. Lester, 348 So.2d at 924-25. A plain reading of the statute at issue reveals the Board's determination that Ocampo's exclusion from all federal health care programs violates section 458.331(1)(b), Florida Statutes (1999), is clearly erroneous....

...Further, DOH does not dispute that a Medicare provider number is not a license pursuant to section 120.52(9), Florida Statutes (1999). Thus, while the federal government may be a licensing authority for certain purposes, it is not "the" licensing authority for purposes of section 458.331(1)(b), Florida Statutes (1999), because it has not licensed Ocampo. As Ocampo was improperly disciplined for a violation of section 458.331(1)(b), Florida Statutes (1999), it follows that the discipline imposed for the violation of section 458.331(1)(kk), Florida Statutes (1999), was also improper....

...Statutes (1977) for which he recommended the lowest penalty, a private reprimand, pursuant to Section 458.1201(3)(a)3., Florida Statutes (1977). The Board adopted the hearing officer's findings of fact and conclusions of law, but mistakenly applied Section 458.331(2)(e), Florida Statutes ( 1979 ), when it determined that the lowest penalty available was the "issuance of a reprimand." Subsequent to this appeal, the Board met, conceded this error, and ordered a private reprimand....

...Gibson's file "closed." In September of 1984, in response to a complaint filed by Ms. Gibson, the Department of Professional Regulation filed a three count Complaint with the Board against Dr. Yero. Count one alleged violations of Sections 458.329 and 458.331(1)(x), Florida Statutes (1983) for sexual misconduct with a patient. Count two alleged a violation of Section 458.331(1)(k) which prohibits exercising influence within a patient-physician relationship for purposes of engaging in sexual activity with a patient. Count three alleged malpractice, a violation of Section 458.331(1)(t)....

...[2] The hearing officer also found that the evidence failed to establish that Dr. Yero exercised influence within a physician-patient relationship for purposes of engaging a patient in sexual activity. [3] The hearing officer *63 concluded that the Department failed to prove any violation of Sections 458.329, 458.331(1)(x), 458.331(1)(k) or 458.331(1)(t) [4] and recommended a dismissal of the administrative complaint....

...The Board's substituted finding represents an improper reweighing of the evidence. Because the Board based its final order on its substituted finding, the Board found it unnecessary to reach the question of whether Dr. Yero was guilty of violating either Section 458.329 or 458.331(1)(k) by engaging in sexual activities with Ms....

...Gibson's demands for sexual intercourse. [2] Section 458.329, prohibits "sexual misconduct in the practice of medicine" which conduct is defined to include a physician's use of the physician-patient relationship to induce a patient to engage in sexual activity. Section 458.331(1)(x) includes as a ground for disciplinary action the violation of any provision of Chapter 458. [3] Section 458.331(1)(k) provides as a ground for disciplinary action a physician's "exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity." [4] Section 458.331(1)(t) includes malpractice as a ground for disciplinary action....

...the Board was statutorily authorized. Appellant pled guilty to conspiring to pay for Medicare patient referrals, in violation of Title 18, United States Code section 371 (2000). Based on Appellant's conviction, the ALJ found that Appellant violated section 458.331(1)(c), Florida Statutes (2002), which provides that "[b]eing convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of med...

...With considerable embarrassment, counsel admitted the two positions in this case were necessarily adverse. This conflict of interest should be avoided by retaining separate counsel to handle any cross-appeal adverse to the other appellee. [7] Department of Transp. v. J.W.C. Co., Inc. (Fla. 1st DCA 1981). [8] § 458.331(2), Fla....

...of a medical license in Florida. 4. On or about July 17, 1992, a formal Uniform Complaint Form was filed with the DPR. The complaint requested an investigation by the DPR of Gerard D. Grau for possible violation of Florida Statutes 458.320(5)(g) and 458.331(1)(a) and (g) [3] ....

...zed statement with the renewal of his license to practice medicine. 7. On or about September 4, 1992, Mel Waxman, an investigator with the DPR issued an Investigative Report regarding alleged violations by Gerard D. Grau of F.S. § 458.320(5)(g) and § 458.331(1)(a) and (g) for failure to pay Branham's adverse final judgment arising from the Circuit Court medical malpractice action....

...DONE and ORDERED. NOTES [1] This issue was discussed at length in this Court's order of April 5, 1994. [2] Acts which are in violation of the stay and subject to the damages provisions of § 362(h) must be both post-petition and willful violations. [3] Fla.Stat. Section 458.331(1)(g) provides: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: (a) Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, b...

...r of the licensee. See Ocampo v. Dep't of Health, 806 So.2d 633, 634 (Fla. 1st DCA 2002); Elmariah v. Dep't of Prof'l Regulation, 574 So.2d 164 (Fla. 1st DCA 1990). In Ocampo, the court construed a disciplinary provision of the Medical Practice Act, section 458.331(1)(b), Florida Statutes (1999), which is worded similarly to the disciplinary provisions at issue here....

...to practice medicine [is] revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions." The Board of Medicine alleged that Ocampo violated section 458.331(1)(b), in that the United States Department of Health and Human Services had excluded Ocampo from participating in Medicare, Medicaid and all federal health-care programs for fifteen years. At the hearing before the Board, Ocampo argued that exclusion of a physician from participation in federal health-care programs was not action by a licensing authority of any jurisdiction, as prohibited by section 458.331(1)(b), Florida Statutes. This court agreed, finding a plain reading of the statute made the Board's determination *1012 that Ocampo's exclusion from all federal health-care programs constituted a violation of section 458.331(1)(b) to be clearly erroneous. The court noted the exclusion from participation in federal health-care programs did not infringe upon Ocampo's authority to practice medicine. It concluded that Ocampo had been improperly disciplined for violations of sections 458.331(1)(b) and 458.331(1)(kk) (failure to report the exclusion within thirty days); therefore, both charges should have been dismissed....

...MRI examination. In finding insufficient evidence to support a violation as to count III, the ALJ made the following findings in paragraphs 41 and 42 of the recommended order: 41. The scope of the physician misconduct encompassed by the language of Section 458.331(1)(q), Florida Statutes, was discussed at length in the recommended order in Department of Health, Board of Medicine v. Leland M. Heller, M.D., DOAH Case No. 00-4747PL, 2001 WL 666972. There the [ Heller ] judge stated: * * * * * * "The wrongdoing that Section 458.331(1)(q) seeks to prevent, it bears repeating, is "prescribing ......

...nal) activity, ..." [ Heller decision quoted at greater length in the recommended order.] 42. The observations quoted immediately above are equally applicable here. And for those same reasons, the charge that the Respondent in this case has violated Section 458.331(1)(q), Florida Statutes, should be dismissed....

...t the Respondent did indeed prescribe, dispense, administer, mixed, or otherwise prepared a legend drug, including any controlled substance, other than in the course of his professional practice as a physician. Therefore, he is found in violation of Section 458.331(1)(q), Florida Statutes, as charged in count 3 of the administrative complaint. (Italics added). Section 458.331(1)(q) forbids the prescribing, dispensing, administering, mixing or otherwise preparing a legend drug "other than in the course of the physician's professional practice." The statute further provides that the "prescribing, dispensing,...

...For example, the Board's arguments rely upon statutes granting it general regulatory powers, including Section 458.301, Florida Statutes (Supp. 1986), setting forth the legislative purpose "to ensure that every physician practicing in this state meet minimum requirements for safe practice," and section 458.331(3), forbidding the Board from issuing a license "to a person it deems or has deemed unqualified, until such time as it is satisfied ......

...oes not state that Dr. Pouliot will satisfy all adverse judgments. The Sign only provides that Dr. Pouliot will either satisfy an adverse judgment against him or be subject to penalties pursuant to Florida law. Florida Statute §§ 458.320(4)(b) and 458.331 set forth the penalties instituted by the DBPR and the Board for a physician's failure to comply with the Financial Responsibility Act....

...DR. POULIOT'S LIABILITY IS NOT LIMITED TO $250,000.00 Dr. Pouliot claims that if his Debt is excepted from discharge pursuant to 11 U.S.C. § 523, this Court should limit his liability to $250,000.00. This Court finds that Fla.Stat. §§ 458.320 and 458.331 do not limit the liability of a non-insured physician to $250,000.00 but merely set forth the penalties for failure of a non-insured physician to comply with Florida law....

...cian pursuant to procedures set forth in subparagraphs (5)(g)2., 3., and 4 [of Fla.Stat. 458.320]. Nothing in this paragraph shall abrogate a judgment debtor's obligation to satisfy the entire amount of the judgment (emphasis added). Florida Statute § 458.331 provides: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: (a) Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations, or through an error of the department or the board ....

...In Borrego v. Agency for Health Care Administration, 675 So.2d 666 (Fla. 1st DCA 1996), the court considered whether double jeopardy protections precluded the criminal prosecution of a physician who had already been fined and suspended for violations of section 458.331, Florida Statutes. In analyzing the issue, the court first looked to whether section 458.331 was penal or remedial in nature, and concluded that although a proceeding to suspend or revoke a license is penal in nature, its goal is remedial. Id. at 668. A license revocation or suspension serves the purpose of protecting the public from unfit physicians rather than punishing the individual doctor. Id. Section 458.331, specifically, was designed to "protect the public from practitioners who cannot comply with `minimum requirements for safe practice.'" Id.; see also Boedy v. Dep't of Prof'l Regulation, 463 So.2d 215 (Fla.1985)(for purposes of the Fifth Amendment protection against self incrimination, section 458.331, is not penal in character, but merely seeks to determine "whether `petitioner is able to practice medicine with reasonable skill and safety'") (citation omitted). The first paragraph of the jury instruction in question references section 458.331, which is entitled "Grounds for disciplinary action; action by the board and department." This statute merely describes actions on the part of a physician which would result in disciplinary proceedings. It does not expressly give a cause of action to patients who may have been injured by any of the actions described; as such, section 458.331 is not a negligence per se statute....

...d from section 59R-9.009 of the Florida Administrative Code. That section prescribes the standards of practice for medical doctors, specifically, the standard of care for office surgery. Title 59 of the Florida Administrative Code is consistent with section 458.331, Florida Statutes, in that it regulates the medical practice and provides for disciplinary actions, but does not purport to give any protections to any particular class of people beyond the public at large....

...REVERSED AND REMANDED FOR A NEW TRIAL. STEVENSON and GROSS, JJ., concur. NOTES [1] The entire instruction given to the jury was as follows: 59R-9.009 Standard of Care for Office Surgery. The Board of Medicine interprets the standard of care requirement of Section 458.331(1)(t), Florida Statutes; the performing of any statutory or legal obligation requirement of Section 458.331(1)(g), Florida Statutes; the not accepting and performing professional requirement of Section 458.331(1)(v), Florida Statutes; and the delegation of duties restrictions of Section 458.331(1)(w), Florida Statutes, with regard to the performance of office surgery as encompassing the following requirements and restrictions relating to the level of anesthetic, training, equipment and supplies, assistance of other personnel, and hospital staff privileges....

...We summarily affirm as to the first two of appellant's issues, but reverse as to the third. In his third point on appeal, Dr. Colbert complains that DOH erred in rejecting the recommended conclusion of the administrative law judge (ALJ) finding that he did not violate section 458.331(1)(m), Florida Statutes (Supp....

...Colbert's post-operative records were not in violation of the statutory record-keeping requirements, had erroneously relied on this court's decision in Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So.2d 469 (Fla. 1st DCA 1990), which had held that the agency could not lawfully interpret section 458.331(1)(m), a penal statute requiring strict construction, as authorizing discipline of a physician for failing to keep sufficient medical records under the theory that a reasonably prudent physician would adequately document in a patient'...

...that which was rejected." The reason given by DOH, i.e., its reliance on the language of its rule, clearly did not comply with the above statutory standard. AFFIRMED in part, REVERSED in part, and REMANDED. BARFIELD and KAHN, JJ., CONCUR. NOTES [1] Section 458.331(1)(m) provides that an appropriate person may be disciplined if he or she fails "to keep written medical records justifying the course of treatment of the patient." [2] Rule 64B8-9.003(2) directed physicians to keep written records "w...

...from the essential requirements of law, we affirm. Three administrative complaints were filed against Dr. Waters in connection with *1012 his treatment of six patients between December 2000 and May 2002. The complaints alleged violations of sections 458.331(1)(m), (q) and (t), Florida Statutes (2001) which allow disciplinary action for failing to keep proper medical records, prescribing controlled substances other than in the course of the physician's professional practice, and failing to practi...

...an abuse of discretion. See § 120.68(7), Fla. Stat. (2006). Based on a careful review of the record, we conclude that competent substantial evidence supports the factual findings of both the law judge and the Department with regard to violations of section 458.331(1)(m), (q) and (t), Florida Statutes....

...gislatively charged with administering is entitled to great weight and should not be overturned unless clearly erroneous.") Accordingly, we affirm the order of the Department that revoked Dr. Waters' license to practice medicine. Affirmed. NOTES [1] Section 458.331 reads, in pertinent part: (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s....

...ances, shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. § 458.331(1), Fla....

...Malave had engaged in sexual activity with her, the Department of Health (Department) suspended his license to practice medicine on an emergency basis. Subsequently, the Department filed an administrative complaint seeking to revoke his license, alleging that Dr. Malave had violated (1) section 458.331(1)(j), Florida Statutes (2002), by exercising influence in a patient-physician relationship for purposes of engaging a patient, J.P., in sexual activity; (2) section 458.331(1)(x) by violating the provisions of chapter 458, Florida Statutes (2002), which prohibit sexual misconduct; and (3) section 458.331(1)(t), Florida Statutes (2002), by failing to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances....

...of Professional Regulation, Tallahassee, for appellee. WIGGINTON, Judge. Dr. Sternberg appeals from the final order of the Board of Medical Examiners, adopting the hearing officer's recommended order, which held that Dr. Sternberg had violated paragraphs ( l ) and ( o ) of section 458.331(1), Florida Statutes (1981). [1] We affirm in part and reverse in part. Dr. Sternberg was charged in a seven count complaint by the Medical Board and the Department of Professional Regulation with violating, inter alia, section 458.331(1)( l ), Florida Statutes, by allegedly making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine, and section 458.331(1)( o ), Florida Statutes, by allegedly exercising influence on a patient in such a manner as *1325 to exploit the patient for financial gain....

..." The hearing officer therefore concluded that Blanchar was "doublebilled" by Dr. Sternberg, who, by such action, employed "a deceptive device or scheme" resulting in a "larger than usual financial gain due to that scheme or device," in violation of section 458.331(1)( l ) and ( o )....

...the record does indicate that a probable cause hearing was held, and, for that matter, Dr. Sternberg has presented no evidence to indicate the contrary. In conclusion, we reverse that part of the Board's order finding that Dr. Sternberg had violated section 458.331(1)( l ) and ( o ). The cause is remanded for further proceedings consistent with this opinion. WENTWORTH and THOMPSON, JJ., concur. NOTES [1] 458.331 Grounds for disciplinary action; action by the board....

...y resting their case at the conclusion of Dr. Nest's evidence. *989 The hearing officer concluded in his recommended order that the Board did have the discretion to deny licensure to Dr. Nest, because by virtue of his past impairment he had violated Section 458.331(1)(s), Florida Statutes (1983) (Grounds for disciplinary action). However, the hearing officer also concluded that it would be an abuse of the Board's discretion to deny Dr. Nest licensure because Section 458.331(1)(s) further provided that: A physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients....

...edicine (Board) which rejects several of the hearing officer's findings of fact and dismisses the charges filed against Dr. Patrick McCarthy. We find that the Board improperly weighed the evidence and reverse. Dr. McCarthy was charged with violating section 458.331(1)(m) and (t), Florida Statutes, [1] in his delivery of C.H.'s child....

...McCarthy's hearing testimony and found that "rotating the baby's head `so that the shoulders w[ould] follow it' was a departure from minimally acceptable practice." As a result, the hearing officer determined that rotating the baby's head violated section 458.331(1)(t)....

...We REVERSE the final order and REMAND for the Board to enter an order adopting the officer's recommended findings of fact. The Board may further consider the penalty, since the improper dismissal precluded such a consideration earlier. [3] ERVIN and JOANOS, JJ., concur. NOTES [1] Section 458.331(1)(m) and (t), Florida Statutes (1991), provides in part: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: ........

...t reviewing any such studies. The evidence at the hearing was found to establish that in over 30 instances appellant produced interpretations for nonexisting studies, or without reviewing studies which did exist. Appellant was found to have violated section 458.331(1)(t), Florida Statutes, by engaging in gross or repeated malpractice or failing to practice medicine in a manner recognized as acceptable under the circumstances. Although section 458.331(1)(t) references section 768.45, Florida Statutes, which establishes standards of recovery in medical negligence actions for death or personal injury, we conclude that contrary to appellant's contention disciplinary action *699 pursuant to Chapter 458 does not require a showing of actual injury. Expert testimony did establish that appellant's actions created the potential for actual injury or harm, and the agency's construction of section 458.331(1)(t) is within the permissible range of its regulatory expertise and authority. Appellant was also found to have violated section 458.331(1)( l ), Florida Statutes, by making deceptive, untrue, or fraudulent misrepresentations....

...However, due to an apparent scrivener's error the appealed order improperly references subsection (e) rather than ( l ). The record indicates that appellant was not thereby prejudiced, and we thus amend the order so as to delete the inappropriate reference to subsection (e) and substitute the correct citation to section 458.331(1)( l ). Appellant was further found to have violated section 458.331(1)(i), Florida Statutes, by making or filing a report known to be false....

...In Department of Professional Regulation v. Alsina, 6 FALR 3863 (March 14, 1984), it was determined in an unappealed administrative order that submitting a fraudulent bill to an insurance company does not fall within the ambit of the conduct prohibited by section 458.331(1)(i)....

...r the single-subject limitation the people have incorporated into article XI, section 3, Florida Constitution. *670 Evans v. Firestone, 457 So.2d 1351, 1354 (Fla.1984). In the present case, the proposed amendment, if adopted, clearly would supercede section 458.331(1)(t), Florida Statutes (2003), [1] and revoke any discretion the Board of Medicine previously had with regard to the discipline of any medical doctor found to have committed three or more incidents of medical malpractice....

...der current law. That is not misleading because the chief purpose of the proposed amendment is to create a bright-line rule with regard to medical doctors who have committed repeated malpractice that is stricter than what is currently provided under section 458.331(1)(t)....

...ine for "[g]ross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances." § 458.331(1)(t), Fla....

...Wilson Jerry Foster, Tallahassee, for appellant. Kathryn L. Kasprzak, Asst. Gen. Counsel, Tallahassee, for appellee. DAVIS, Judge. Appellant, Balakrishna Nair, M.D., appeals from an order of the Board of Medicine ("the Board") determining that appellant had on two occasions violated section 458.331(1)(j), Florida Statutes....

...Because the administrative action against appellant with regard to patient 2 involved revocation or suspension of his license, thereby requiring the Department to demonstrate misconduct by clear and convincing evidence, we conclude that the Board erred in finding appellant guilty of a violation of section 458.331(1)(j), Florida Statutes, by a preponderance of the evidence and imposing a $5,000 administrative fine for that violation....

...alleging, among other things, that appellant exercised influence within a physician-patient relationship for purposes of engaging patient 1 and patient 2 in sexual activity. The administrative *206 complaint alleged that appellant's conduct violated section 458.331(1)(j), Florida Statutes (1989)....

...appellant exercised influence within a physician-patient relationship for the purpose of engaging patient 2 in sexual activity. The hearing officer recommended that the Board enter a final order finding appellant guilty of two separate violations of section 458.331(1)(j) and imposing an administrative fine of $10,000 ($5,000 per offense)....

...On February 5, 1994, the Board met to consider the hearing officer's recommended order. On April 5, 1994, the Board entered a final order approving and adopting the hearing officer's recommended findings of fact and finding that appellant had on two occasions violated section 458.331(1)(j), Florida Statutes, as charged in the administrative complaint....

...license be restricted forever so that appellant must always have an employee present when he examines, diagnoses, treats or otherwise meets with a female patient. Appellant contends that the Board erred in finding appellant guilty of a violation of section 458.331(1)(j) by only a preponderance of the evidence....

...Dep't of Professional Regulation, Bd. of Medicine, 574 So.2d 153, 154, n. 2 (Fla. 1st DCA 1990). The correct standard for revocation or suspension of a professional license is that the evidence must be clear and convincing. Id. Appellee responds that, under section 458.331(3), Florida Statutes, violations proven by a preponderance of the evidence should not be barred as being the basis for a lesser penalty. Section 458.331(3), Florida Statutes (1989), provides: In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence. (emphasis added) We hold that the Board erred in concluding that appellant was guilty of a violation of section 458.331(1)(j) by a preponderance of the evidence with regard to patient 2. In the present case, the Department sought, among other penalties, revocation or suspension of appellant's license. Because the administrative action against appellant did "involve revocation or suspension of license," under the plain language of section 458.331(3), the Department was required to prove its case by clear and convincing evidence. Because the Department proved a violation of section 458.331(1)(j) with regard to patient 2 by a mere preponderance of the evidence, the Board erred in finding a violation of that statute and in imposing a $5,000 administrative fine....

...Because the Board did not decide to include in its final order that this restriction would continue forever, the Board erred in entering a final order which imposed the restriction forever. Accordingly, we reverse the Board's determination that appellant was guilty of a violation of section 458.331(1)(j) as to patient 2 and reverse the imposition of a $5,000 administrative fine for that violation....

...ith female patients, we reverse that part of the final order which restricts appellant's practice forever, and we remand this case to the Board. We affirm the Board's order in all other respects. ALLEN, J., and SMITH, Senior Judge, concur. NOTES [1] Section 458.331(1)(j), Florida Statutes (1989) provides that disciplinary action may be taken against a physician for "[e]xercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity... ." [2] The Department has the authority to designate approved impaired practitioner treatment programs pursuant to section 458.3315, Florida Statutes (1989), and section 455.261, Florida Statutes (1993)....

...of Health, Tallahassee, for Appellee. HAWKES, J. The Department of Health brought a three count administrative complaint against Dr. Antonio Aldrete for events that occurred in the treatment of his patient, J.S. The administrative law judge found Dr. Aldrete violated section 458.331(1)(t), Florida Statutes (1999), count I of the complaint, by failing to practice medicine with the level of care, skill and treatment acceptable for a reasonably prudent physician under similar circumstances....

...William Breesmen, M.D., appeals a final order of the Board of Medicine, Department of Professional Regulation, that suspended his license to practice medicine in the state of Florida for 6 months for failing to keep medical records justifying his treatment of a patient in accordance with section 458.331(1)(m), Florida Statutes (1987). Because there was no showing that Dr. Breesmen violated section 458.331(1)(m), or any rule promulgated pursuant to this statute, we reverse....

...Breesmen agreed to abide by her requests. Four days after her admission, B.R. died of acute transmoral myocardial infarction. The Department of Professional Regulation filed an administrative complaint against Dr. Breesmen alleging, inter alia, that he violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, [and] * * * * * * violated Section 458.331(1)(m) ......

...would have ordered daily chest x-rays, taken an echocardiogram, inserted a Swan-Ganz catheter, and consulted with a cardiologist. The hearing officer specifically found Dr. Breesmen not guilty of malpractice in failing to provide B.R. with appropriate treatment. However, he found that Dr. Breesmen was guilty of violating section 458.331(1)(m), Florida Statutes (1987), in that he failed to maintain adequate medical records to justify the treatment rendered to B.R....

...usions of law set forth in the recommended order, and suspended Dr. Breesmen's license for 6 months, placed him on probation for the 2-year period following the suspension, and ordered that he pay costs necessary for compliance with the final order. Section 458.331(1)(m), Florida Statutes (1987), provides that disciplinary action, including revocation or suspension of a license, may be taken against a physician for: Failing to keep medical records justifying the course of treatment of the patien...

...Breesmen argues on appeal that the evidence did not support the hearing officer's conclusion that he violated this statute. We agree. The Board's evidence, at its best, showed only that Dr. Breesmen's actions were not in keeping with JCAH standards or those of a "reasonably prudent physician." However, section 458.331(1)(m) does not purport to encompass such standards, nor has any rule encompassing such standards been promulgated pursuant to section 458.331(1)(m). Thus, this evidence does not support the conclusion that Dr. Breesmen violated section 458.331(1)(m). Furthermore, because section 458.331(1)(m) authorizes revocation or suspension of a professional license, it is penal in nature and must be strictly construed in favor of the licensed physician....

...made were false or inaccurate. The entire case against him rests on failing to note why he did not follow other courses of treatment. Thus, it cannot be said that Dr. Breesmen violated the statutory standard established by the language set forth in section 458.331(1)(m)....

...For the reasons which follow, we affirm. [1] The primary contention raised by Dr. Major on appeal is that the final order impermissibly rejects the hearing officer's findings of fact and related legal conclusion that Dr. Major had not violated, as charged, Section 458.331(1)(s), Florida Statutes (1985)....

...[5] The hearing officer concluded that the evidence adduced before her did not establish, as charged, that Dr. Major is "unable to practice medicine with reasonable skill and safety to patients by reason of ... use of alcohol, drugs, narcotics, chemicals, ... or as a result of any mental or physical condition," § 458.331(1)(s), Fla....

...cohol, drugs, narcotics, chemicals, or any mental or physical condition. The Board rejects the view of the hearing officer that the fact that no patient was injured is dispositive of this issue. The fact that no patient harm occurred was fortuitous. Section 458.331(1)(s), Florida Statutes, sets forth a violation when the physician is unable to practice medicine with reasonable skill and safety to patients....

...Based on this showing, the Board was entitled to conclude that Dr. Major was, as charged, "unable to practice medicine with reasonable skill and safety to patients by reason of ... use of alcohol, drugs, narcotics, chemicals, ... or as a result of any mental or physical condition." § 458.331(1)(s), Fla....

...JORGENSON, Judge. Michael Solloway, M.D., appeals the revocation of his license to practice medicine by the Department of Professional Regulation, *574 Board of Medical Examiners. He alleges as error an unconstitutional ex post facto application of Section 458.331, Florida Statutes (1979), and the failure of the Board to determine the standards by which it found his conduct to be unprofessional....

...t relationship. [1] The statute in effect at the time of the incident was Section 458.1201(1)(m), Florida Statutes (1977). [2] At the time the administrative complaint was filed, December 13, 1979, the foregoing statute had been replaced by Sections 458.331(1)(k), (t), Florida Statutes (1979). [3] The final order revoking Solloway's license to practice medicine concluded that a violation of Section 458.1201(1)(m), Florida Statutes (1977), as codified in Section 458.331(1)(t), Florida Statutes (1979), had occurred....

...ical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether committed within or without this state. [3] §§ 458.331(1)(k), (t), Fla....

...ure for all informal and formal proceedings. See Rule 21M-18.04. Florida Administrative Code. Appellant has not shown any prejudice resulting from the Board's failure to adopt more explicit rules. We reject appellant's argument that Florida Statutes Section 458.331(4) requires appellant's reinstatement because of the failure of the agency to develop guidelines for the reissuance of a license....

...nduce or attempt to induce such person to engage in, verbal or physical activity outside the scope of the professional practice of such health care profession. Sexual misconduct in the practice of a health care profession is prohibited. In addition, section 458.331(1)(j) sets out the following additional ground for discipline: Exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity....

...[7] Ample remedies already exist if an actual violation of the privilege takes place. Morris, 191 W. Va. at 426, 446 S.E.2d at 648; Steinberg v. Jensen, 186 Wis.2d 237, 519 N.W.2d 753 (1994) (new trial ordered upon discovery of defense violation of privilege), review granted, 525 N.W.2d 732 (Wis. 1994); see § 458.331, Fla....

...in their early thirties at the time of the hearing. In Vermont, Dr. Rife maintained that the allegations must be proven by clear and convincing evidence. That burden of proof is applicable in Florida. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); § 458.331(3), Fla....

...The Vermont Board rejected his request for the higher burden of proof, relying on an opinion from the Vermont Supreme Court. See In re Muzzy, 141 Vt. 463, 449 A.2d 970 (1982). Dr. Rife has appealed this issue in Vermont in two separate proceedings. The order revoking his license in that state is still on appeal. *543 Section 458.331 permits the Board to revoke a physician's license upon clear and convincing evidence that the physician's license has been revoked "by the licensing authority of any jurisdiction." § 458.331(1)(b), Fla....

...This higher burden has been justified by the value of licenses and the gravity and magnitude of the penal statutes that permit their revocation. Although this reasoning clearly raises issues of due process, the supreme court has not squarely held that section 458.331 would be unconstitutional if it relied on a lesser burden....

...Nevertheless, we see little basis for Florida to second guess Vermont concerning the procedural adequacy of its administrative hearings when it is apparent that the Vermont hearing fulfilled the basic requirements of due process. We recognize that section 458.331 is penal in nature and should be strictly construed in favor of the physician. Breesmen v. Department of Prof. Reg., 567 So.2d 469 (Fla. 1st DCA 1990). Section 458.331(1)(b) permits *544 disciplinary action based on any action against a medical license in another state....

...tween $4000 and $5000 per MUA patient referral, all in violation of Florida’s Patient Brokering Act, Fla. Stat. § 817.505 and Anti-Kickback Statute, Fla. Stat. § 456.054 , as well as the prohibition against physician fee-splitting, § Fla. Stat. 458.331(l)(i)....

...gan an investigation on behalf of the Department. After Spuza's conviction, the Agency presented his case to the Board of Medicine for a determination of probable cause. The Board concluded there was probable cause to believe that Spuza had violated section 458.331(1)(c), Florida Statutes (2001), and it directed the Department to file an administrative complaint against Spuza's license. Section 458.331(1)(c) provides: (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s....

...these factors were. The order noted that Spuza had requested a formal hearing, but the Board did not find any dispute in the material facts. The Department took the position that Spuza's conviction, in itself, was sufficient to prove a violation of section 458.331(1)(c), that there were no disputes of fact, and that a formal hearing under section 120.57(1) was not required....

...ding the subject offense," a formal hearing was unnecessary. But Spuza was not attempting to relitigate his convictions. Rather, he claimed that the convictions did not "relate[ ] to the practice of medicine or the ability to practice medicine." See § 458.331(1)(c)....

...] and (2) provided care of those patients that fell below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; in violation of sections 458.331(1)(q) and (t), Florida Statutes, respectively....

...The agency filed exceptions to the recommended findings of fact and conclusions of law as to five of the seven patients. [6] The board of medicine accepted all the agency's exceptions, amended the findings of fact in accordance with the agency's suggestions, and found the doctor in violation of sections 458.331(1)(q) and (t), Florida Statutes....

...Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromorphone), and oxycodone (percodan and percoset). [2] The agency also alleged that Dr. Hoover failed to keep medical records justifying the course of treatment for seven patients in violation of section 458.331(m)....

...Willner, M.D., from a final order of the Department of Professional Regulation, Board of Medicine, appellee. In its final order, appellee adopted the recommended order of the hearing officer, who had concluded that appellant was guilty of ten violations of Section 458.331(1), Florida Statutes (1981, 1983, & 1985)....

...Consequently, we modify the final order to comply with the requirements of law. First, appellant correctly argues that three of the violations were not charged in the administrative complaints against him. We, therefore, set aside the findings of guilt and the fines for violation of Section 458.331(1)(h), Florida Statutes (1981); Section 458.331(1)(t), Florida Statutes (1981); and Section 458.331(1)(n), Florida Statutes (1983)....

...Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984). Next, appellant argues that the fines imposed against him are in violation of the ex post facto provisions of the state and federal constitutions. We agree. In 1986, Section 458.331(2)(d), Florida Statutes, was amended to increase the amount of the maximum administrative fine which could be assessed by appellee for violations of Section 458.331(1), Florida Statutes....

...of the Florida Constitution, which provides that "[n]o administrative agency shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law." For its authority, appellee relies upon the language contained in Section 458.331(2)(f), Florida Statutes, which authorizes appellee, upon finding a violation of Section 458.331(1), Florida Statutes, to place a physician on probation "subject to such conditions as the board may specify." We agree that the $60,000 payment is a penalty....

...ive intent that the agency have authority to exact the penalty prescribed. Continental Const. Co. v. Board of Trustees of Internal Imp. Trust Fund, 464 So.2d 204 (Fla. 1st DCA 1985), review denied, 472 So.2d 1180 (Fla. 1985). We find the language of Section 458.331(2)(f), Florida Statutes, to be a general grant of authority to the appellee, lacking in sufficient specificity to evince a legislative intent to authorize appellee to exact *807 monetary penalties as conditions of probation....

...ng the Board to articulate the criteria it would use to evaluate a petition for reinstatement and the criteria it would use to determine when such petition could be regarded as "mature." The Board replied that criteria for reinstatement are found in Section 458.331(3), Florida Statutes (1983), [2] which provided: "The board shall not reinstate the license of a physician, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that he has complied...

...Ghani said that it would be quicker to drive there. Based on these facts, the administrative law judge (ALJ) concluded that Dr. Ghani's attempts to break the arrhythmia by using IV digoxin and verapamil in his office were appropriate under the circumstances. Nevertheless, Dr. Ghani violated section 458.331, Florida Statutes (1993), by failing to practice medicine with the level of care, skill and treatment recognized as being acceptable by a prudent, similar physician....

...y by requiring them to notify a parent or guardian when a minor intends to have an abortion. Physicians' own interests are at stake here, too. They are subject to discipline if they violate the notice provisions of the Act. See §§ 390.01115(3)(c), 458.331(1)(z), Fla....

...State, 619 So.2d 418, 419 (Fla. 5th DCA 1993), affirmed, 640 So.2d 1084 (Fla. 1994). Only physicians, indeed, are subject to any penalty under the Act. A physician who violates the terms of the Act faces possible loss of his or her license to practice medicine. See § 458.331(2), Fla....

...2972, 111 L.Ed.2d 405 (1990) (concluding that "a bypass procedure that will suffice for a consent statute will suffice also for a notice statute"). VI. We reject plaintiffs' contention that the Act is facially unconstitutional because *269 it violates the due process rights of physicians. Sections 458.331(1)(z) and 459.015(1)(dd), Florida Statutes (1999), which make a physician subject to discipline if the physician procures, or aids or abets in procuring, an unlawful abortion, do not purport to make physicians guarantors of their patients' truthfulness....

...Turlington, 510 So.2d 292, 294 (Fla.1987). Physicians may be disciplined for "[g]ross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions or circumstances," §§ 458.331(1)(t), 459.015(1)(x), Fla.Stat. (1999), or for "[p]rocuring, or aiding or abetting in the procuring of, an unlawful termination of pregnancy." §§ 458.331(1)(z), 459.015(1)(dd), Fla.Stat....

...other pertinent fact. *270 Finally, the plaintiffs complain that the Act does not define exactly what amounts to "reasonable efforts." But regulations governing physicians (among others) are commonly couched in terms of reasonableness. See, e.g., §§ 458.331(1)(s), (1)(t), & (1)(v), Fla.Stat....

...etition is premature and that his proposed plan for reinstatement is severely deficient" and that he had "failed to demonstrate to the Board's satisfaction that he is now capable of practicing medicine with reasonable skill and safety as required by Section 458.331(3), Florida Statutes." In July, 1983, Griffith filed with the Board a petition for declaratory statement pursuant to Section 120.565, Florida Statutes, in which he sought a statement of the criteria by which a petition for reinstateme...

...recited in relevant part: Ordered and adjudged that the request be denied on the grounds that it is premature. * * * Without addressing the issue of whether [Griffith] has presented a plan for reinstatement that would comply with the requirements of Section 458.331(3), Florida Statutes, the Board again reiterates that it considers respondent's request to be premature....

...He acknowledged that Griffith fell within that category of "revokees" who would be eligible for reinstatement consideration, his license having been revoked prior to June 5, 1983. The chairman also stated that Griffith's petition would be regarded as "mature" when he could prove the criteria contained in Section 458.331(3), Florida Statutes....

...." But, the Board stated some individuals whose licenses were revoked prior to June, 1983, "will never be reinstated because of the nature of their offense." The order states that the criteria governing reinstatement petitions are those set forth in Section 458.331(3), supra, and "the nature of the violation which led to the revocation." Further, the order states that the petitioner's reinstatement petition will be considered as mature when the petitioner "can satisfy the requirement of Section 458.331(3), and when he can demonstrate to the Board's satisfaction that his medical judgment, as evidenced by his history of misconduct, has improved such that it is unlikely that he will again violate the Medical Practice Act and the rules or orders of the Board." In Katz v. Florida State Board of Medical Examiners, 405 So.2d 465 (Fla. 1st DCA 1981), this court rejected Katz's argument that Section 458.331(4), Florida Statutes, [2] required Katz's reinstatement because of the failure of the agency to develop guidelines for the reissuance of a license....

...r consideration. Its order clearly shows that the petition was denied because it was premature, the order further expressly stating that the Board declined to address the issue of whether Dr. Griffith's petition for reinstatement met the criteria of Section 458.331(3)....

...ers the history of the administrative proceedings involving Griffith after which the Board voted to deny the reinstatement petition. Although Griffith and his attorney were present, they were not heard with respect to the reinstatement petition. [2] Section 458.331(4), Florida Statutes (1981), provides: "The board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations....

...No abuse of discretion is shown. To the contrary, where the physician's conduct demonstrates a lack of competency the Board is obligated to suspend his license until it is satisfied that "such person is capable of safely engaging in the practice of medicine." § 458.331(3), Fla....

...e issue of law to be ruled upon by the hearing officer: Whether Dr. Gentile is of good moral character and whether he has committed any act or offense within or without the state which will constitute a basis for disciplining a physician pursuant to Section 458.331, as required by Section 458.313(1)(b), Florida Statutes (1981)? A final hearing was held on October 14, at which the attorney for the Board offered into evidence a substantial amount of testimony regarding appellant's failure to discl...

...is of good moral character and can safely engage in the practice of medicine. If appellant perjured himself by intentionally falsifying his application or untruthfully responding to Board inquiries, this is a valid ground for denying him a license. § 458.331(1)(a), Fla....

...in which he renders medical care to patients. Crow filed a petition for declaratory statement before the Board of Medicine which suggested a proposed agreement concerning payment of fees and sought a determination that the proposal would not violate section 458.331(1)(i), Florida States....

...Petitioner anticipates that this employment arrangement with IHHC will allow him to engage exclusively in the practice of medicine and will relieve him of the business management responsibilities of practice. Petitioner requests that the Board of Medicine interpret Section 458.331(1)(i), Florida Statutes, in light of the proposed amendment to his employment agreement with IHHC and state whether the proposed compensation arrangement would constitute a "fee-splitting arrangement" in violation of the referenced statutory provision. The Board of Medicine made the following findings: 3. Section 458.331(1)(i), Florida Statutes, prohibits certain financial arrangements by physicians....

...As applied to the situation described in this petition, the Board concludes that a salary based on a percentage of the previous year's revenues and a year-end bonus based on current year revenues would each be in violation of the prohibition set forth in Subsection 458.331(1)(i), Florida Statutes....

...WHEREFORE IT IS HEREBY ORDERED AND ADJUDGED: To the extent that the arrangement proposed by Petitioner would provide for either a salary or a year-end bonus based *1162 upon total revenues generated by Petitioner for IHHC, such an arrangement would be in violation of the prohibition set forth in Subsection 458.331(1)(i), Florida Statutes....

...However, to the extent that such arrangements are based solely on the fees generated for IHHC by Petitioner's professional services actually rendered and those rendered by PA's or ARNPs under Petitioner's direct supervision, they are permitted by law. This appeal followed. Crow argues that section 458.331(1)(i) prohibits only payment or receipt of commissions, bonuses, kickbacks, or rebates, or a split-fee arrangement in exchange for referral of patients....

...addressed by the Board could easily arise in his proposed arrangement with IHHC, and the Board is justified in pointing out pitfalls that it sees. In this case, the Board is making it clear that selling one's practice to an HMO is not a loophole to section 458.331(1)(i)....

...dered his license to practice medicine to his parole officer. The Florida Department of Health subsequently brought a disciplinary action against Gonzalez-Gomez in a three-count Administrative Complaint. Count 1 charged Gonzalez-Gomez with violating section 458.331(l)(c), Florida Statutes (2009), by being convicted of a crime directly relating to the practice of medicine, regardless of adjudication....

...Florida State Board of Dentistry, 369 So.2d 629 (Fla. 1st DCA 1979); Conner v. Alderman, 159 So.2d 890 (Fla. 2d DCA 1964). A statute requiring the keeping of patient records, such as those subpoenaed in this case, has been in effect since 1979. See § 458.331(1)(n), Fla....

...3 So.2d at 544. The hearing officer, the Board, and this court all rejected Boedy's argument, stating that the last sentence in section 458.301 referred to "physicians" in general. We further noted that the disciplinary statute which Boedy violated, section 458.331, Florida Statutes, authorized the Board to discipline "any person." Boedy is distinguishable from the case at bar, because of the more specific language in the statute authorizing discipline against licensees....

...We therefore reverse and remand that portion of the final order wherein the Board directed the Department to deny any future application for licensure filed by Suncoast. AFFIRMED IN PART, REVERSED IN PART and REMANDED. BOOTH and VAN NORTWICK, JJ., concur. NOTES [1] See, e.g., §§ 457.116 (acupuncture), 458.331 (medical practice), 459.015 (osteopathy), 460.413 (chiropractic), 461.013 (podiatry), 462.14 (naturopathy), 463.016 (optometry), 464.018 (nursing), 465.016 (pharmacy), 467.203 (midwifery), 468.1295 (audiology), Fla....

...PER CURIAM. Dr. Michael Fox ("Appellant") seeks review of a final order of the Board of Medicine ("the Board"), disciplining him for acting below the standard of care, skill, and treatment acceptable for a reasonably prudent physician in violation of section 458.331(1)(t), Florida Statutes (2007)....

...Specifically, the ALJ found that "[Appellant] failed to establish in his defense that he knew the result [of the pregnancy test] before performing the hysterectomy." The ALJ recommended that the Board enter a final order finding Appellant in violation of section 458.331(1)(t), imposing a $10,000.00 administrative fine against him, requiring him to take a risk management course for physicians, and issuing a letter of reprimand....

...This appeal followed. The Board may discipline a physician for "failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances." §§ 458.331(1)(t); 456.072(2), Fla. Stat. (2007). Section 458.331(1)(t) further provides, "The board shall give great weight to the provisions of s....

...Accordingly, Nurse Lloyd's testimony of her ordinary practice would not constitute competent substantial evidence of what occurred on the relevant occasion. As such, the ALJ's finding that Appellant's actions fell below the standard of care in violation of section 458.331(1)(t) was not supported by competent, substantial evidence....

...Department of Professional Regulation, the appellant appealed the Board of Medicine’s final order revoking his license to practice medicine in Florida based on Vermont having revoked his license to practice in that state. 638 So. 2d 542, 542 (Fla. 2d DCA 1994). Although section 458.331, Florida Statutes, allowed the board to revoke the appellant’s license upon evidence that his license had been revoked by the licensing authority of any jurisdiction, the appellant argued that Florida should not have revoked his license until all the appellate proceedings concluded in Vermont....

...legal malpractice case. We reverse. Alberto Oteiza, a physician, employed Harold M. Braxton, an attorney, to represent him in an appeal of a final order of the Board of Medical Examiners, which found Oteiza subject to disciplinary action pursuant to section 458.331(l)(w), Florida Statutes (1983), and which suspended his license to practice medicine for three years....

...He found insufficient evidence to substantiate the other charges. The recommended order stated that, as medical director of a clinic employing physician’s assistants, Oteiza was responsible for failure to ensure that the workers were certified, pursuant to section 458.331(l)(w)....

...the board to increase, rather than reduce, the penalty. On the basis of the foregoing, it was error to enter summary judgment for Brax-ton. Finding no merit in the other issue raised, we reverse and remand the cause to the trial court. . Pursuant to section 458.331(4), Florida Statutes (1983), the Board of Medical Examiners is authorized to establish guidelines for the disposition of disciplinary cases involving violations. At the time Oteiza was disciplined, the penalty for violation of section 458.331(l)(w) ranged anywhere from a reprimand to license revocation or an unspecified period of license suspension....

...d that he has met the qualifications for licensure in s. 458.311 and: ... . (b) Is of good moral character and has not committed any act or offense within or without the state which would constitute the basis for disciplining a physician pursuant to s. 458.331; *1306 The relevant part of s. 458.331, Florida Statutes, reads: 458.331 Grounds for disciplinary action; action by the board....

...ctice of medicine with reasonable skill and safety to his patients based upon the evaluation report on his post-graduate training at Baylor University Medical Center in Dallas, Texas, and his misdemeanor conviction as required by Section 458.313 and 458.331(3), F.S....

...The Hearing Officer recommended that the Board approve the application for licensure. The Hearing Officer's Conclusions of Law in the Recommended Order read: *1309 1. The parties stipulated to the following issues of law: (1) Whether Dr. Bachynsky meets the qualifications of Sections 458.313 and 458.331, Florida Statutes, in view of his 1974 misdemeanor conviction for possession of stolen automobile parts of a value of less than $100.00 which were being transported in interstate commerce....

...Bachynsky's post-graduate residency training which gave Dr. Bachynsky "good" and "superior" ratings on all specific categories and a general recommendation of "qualified and competent", is a ground for denying Dr. Bachynsky's application under the provisions of Sections 458.313 and 458.331, Florida Statutes? Section 458.313, Florida Statutes, sets forth the required qualifications for licensure by endorsement....

...It is undisputed that Petitioner meets all such qualifications other than Subsection 458.313(1)(b), which states, as follows: (b) Is of good moral character and has not committed any act or offense within or without the state which would constitute the basis for disciplining a physician pursuant to s. 458.331. .. . It is conceded by Respondent that Petitioner's 1974 misdemeanor conviction does not provide grounds for disciplinary action under Section 458.331, Florida Statutes....

...Race was changed to a full recommendation after he became acquainted with the facts surrounding Petitioner's conviction. Accordingly, it is concluded that Petitioner has shown that he is of good moral character and should be licensed. 3. Respondent's reference to Section 458.331(3) is considered inapplicable to a determination of qualifications upon original licensure, and concerns only those situations where a final order of license denial has been previously issued by the Board....

...nt the provision of such information in the patient’s medical records); id. § 458.325 (requiring physicians, prior to administering electroconvulsive or psychosurgical procedures to a patient, to disclose information regarding the procedure); id. § 458.331 (listing various grounds for disciplinary action, including “the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct” to solicit patients; “failing to keep legible ....

...It conferred rulemaking authority on the Board "to implement the provisions of this chapter conferring duties upon it." See § 458.309(1), Fla. Stat. (2002). However, in section 458.303(2), the Legislature limited the Board's rulemaking function as follows: ... Nothing in ... s. 458.309 or s. 458.331 ......

...service to be performed and gives final approval to all services performed. To insure that physicians do not practice beyond their level of competency, the Legislature gave the Board the authority to establish rules governing standards of practice. Section 458.331, Florida Statutes (2002), sets forth grounds for disciplinary action. Section 458.331(1) lists acts that "constitute grounds for denial of a license or disciplinary action," including: (v) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities whic...

...novo. See Fla. Acad. of Cosmetic Surgery, 808 So.2d at 253 (citation omitted). Appellant contends that the Board's rule exceeded its authority because the provisions contained in section 458.303 limit the Board's rulemaking authority as provided in section 458.331. The Board cited sections 458.309(1) and 458.331(1)(v) as specific authority for adopting the rule. See Fla. Admin. Code R. 64B8-9.009. The issue presented is whether the provisions of section 458.303 limit the Board's ability under section 458.331 to promulgate this rule....

...eral *406 statutory provision covering the same and other subjects in general terms."); Seven Seas Frozen Prods. v. Fast Frozen Foods, 43 So.2d 181, 182 (Fla.1949) (same)). These principles require that the grant of rulemaking authority contained in section 458.331(1)(v) be construed together with section 458.303. Otherwise, specific legislative directives could be eliminated through the Board's exercise of its rulemaking authority. By specific reference in section 458.303(2) to both section 458.309 containing the general grant of rulemaking authority, and section 458.331, the Legislature has circumscribed the Board's rulemaking authority. Section 458.331(1)(v) sets forth a ground for disciplinary action against a physician....

...The Board has rulemaking authority to develop standards of practice for particular practice settings. These standards provide notice to the physicians in those practice settings as to what acts constitute practice beyond the scope permitted by law. However, section 458.303(2) specifically limits the reach of section 458.331. Pursuant to 458.303(2), the grant of rulemaking authority under section 458.309 and section 458.331 cannot be "construed to prohibit any service rendered by a registered nurse or a licensed practical nurse, if such service is rendered under the direct supervision and control of a licensed physician who provides specific direction for any service to be performed and gives final approval to all services performed." Thus, under sections 458.331 and 458.303(2), so long as a licensed physician has direct supervision and control over the registered nurse, the fact that services are provided by that nurse cannot be a ground for discipline of the physician, and no rules can prohibit such services by a registered nurse....

...The rule is also invalid under section 120.52(8)(c) because it modifies the terms of the specific provisions of the law implemented. Again, the specific limitations contained in section 458.303(2) must be construed together with the grant of authority in section 458.331....

...rohibited 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....

...394 for termination of pregnancy in the third trimester, and another physician is not available for consultation." [2] Finally, the ALJ found that there was clear and convincing evidence that Dr. Pendergraft committed medical malpractice pursuant to section 458.331(1)(t)1., Florida Statutes (2005), by failing to meet the standard of care for performing third trimester abortions as set forth in sections 390.0111 and 797.03....

...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....

...o 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....

...Florida State Board of Dentistry, 369 So.2d 629 (Fla. 1st DCA 1979), in support of his contention that his patient records are privileged and protected by the Fifth Amendment. [1] In response, the Department *843 cites Section 455.241(1) and (2) and Section 458.331(1)(n), Florida Statutes (1983), and contends this case falls within the "required records" exception, The Florida Bar v....

...forum for enforcement proceedings regarding this administrative subpoena. [2] Carrow's apprehension that without the court's immediate intervention he will be subjected to disciplinary proceedings for failure to comply with the subpoena pursuant to Section 458.331(1)(x) is unfounded....

...The petition for review of non-final administrative action is DENIED. JOANOS and ZEHMER, JJ., concur. NOTES [1] We note, although the Department's brief fails to mention it, that after this court decided Sheppard in 1979, the Legislature repealed and re-enacted Chapter 458 adding the language in Section 458.331(1)(n) to the effect that physicians may be disciplined for failing to keep written medical records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results and test results. See Section 458.007(1)(n), Ch. 79-302, Section 1. Section 458.007(1)(n) was renumbered as Section 458.331(1)(n) in the 1979 Florida Statutes....

...PEARSON and FERGUSON, JJ. PER CURIAM. The main issue in this appeal from an administrative order is whether a conviction for solicitation to commit first degree murder "directly relates to the practice of medicine or to the ability to practice medicine," section 458.331(1)(c), Florida Statutes (1985), so as to form the basis for revoking a license to practice medicine....

...ever is the greater." § 768.31(5), Fla. Stat. (1985). Morales paid $100,000 pretrial to Scherer in order to have another doctor defendant dismissed from the instant litigation. Apparently this was done to permit the doctor to avoid discipline under section 458.331, Florida Statutes. Under section 458.331(1)(t) "gross or repeated" malpractice is grounds for disciplinary action by the Board of Medical Examiners....

...The Department claimed that while T.B. was at Appellee’s office, Appellee made inappropriate sexual advances toward T.B. 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 Comp...

...he quantity of fluid drawn. Further, no experienced gynecologist should mistake the head of the *49 fetus as the extremity of the uterus on a patient such as A.L. The hearing officer concluded that the appellant was guilty of gross malpractice under Section 458.331(t), Florida Statutes, by underestimating A.L.’s stage of pregnancy by 4 months thereby resulting in his performance of the abortion in the last trimester when such procedure was not necessary to save the life or preserve the health of the patient, thus violating Section 390.001(2), Florida Statutes....

...We vacate the order suspending Son’s license and remand for entry of an order dismissing the complaint. . The Ayala court construed section 458.-331(l)(c), Florida Statutes (1983), which sets forth the grounds for disciplinary action against members of the medical profession. Section 458.331(l)(c) contains virtually identical language as section 475.25(l)(f).

...ing his reason for leaving. Dr. Maravel’s application was once again rejected. Relying on Backynsky v. State of Florida, Department of Professional Regulation, Board of Medical Examiners, 471 So.2d 1305 (Fla. 1st DCA 1985), Dr. Maravel argues that Section 458.331(3) is inapplicable because it relates to reinstatement of licenses, not to original licensure. However, a close reading of Ba-chynsky reflects that this court did not hold that Section 458.331(3) relates solely to reinstatement of licenses....

...kewise without merit. In the order dated January 22, 1985, the Board stated: “Your application and supporting documentation [do] not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.331(3), F.S.” Additionally, in Farzad v....

...Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087, 1090 (Fla. 1st DCA 1984). Based on the foregoing, we affirm. BOOTH, C.J., and TILLMAN PEARSON (Ret.), Associate Judge, concur. SMITH, J., dissents with written opinion. . Section 458.331, Florida Statutes, provides the grounds for disciplinar^ action....

...concluding that any lesser restriction would be insufficient to stop the harm and protect the public from the immediate serious danger posed by Dr. Valls’ continued unrestricted practice as a medical doctor. DISCUSSION 4  Section 458.331(1)(v), Florida Statutes (2017), subjects a physician to discipline, including license restriction, for practicing beyond the scope permitted by law or accepting and performing professional responsibilities which the physician knows...

action, as appellant was charged with violating section 458.-331(l)(b), Florida Statutes, which specifies that

...Boedy v. Dep’t of Professional Regulation, 463 So.2d 215 (Fla.1985). The rule relied upon by Dr. Cohen affords him an opportunity for reinstatement. In ruling upon a proceeding under the rule, however, the Board is subject to the very strict dictates of § 458.331(4), which quite obviously place the public interest above the individual interests of unlicensed doctors seeking reinstatement....

...Dep't of Highway Safety & Motor Vehicles, 814 So.2d 1258 (Fla. 5th DCA 2002). On August 19, 2005, Appellant's license was temporarily suspended. Eleven months later, on July 13, 14, and 17, 2006, the hearing was conducted before the ALJ. Appellant was found to have violated section 458.331, Florida Statutes....

...Florida Statutes. Id. To the contrary, we reasoned that the plain language of the statute, including the use of the general term “physicians” and the phrase “any person,” applied to the formerly licensed appellant regardless of license status. Id. (citing § 458.331(2), Fla....

...See also Gross v. Dep’t of Health, 819 So.2d 997, 1005 (Fla. 5th DCA 2002) (where the “Board has conceded in these proceedings that all of the findings made by the ALJ, including the finding that Gross did not violate the applicable standard of care or violate section 458.331(l)(t), are supported by substantial, competent evidence,” the “Board may not reject or modify those findings, substitute its findings, or make new findings”)....

...We have jurisdiction pursuant to Section 120.68(1), Florida Statutes (1985), and reverse. Stern’s license to practice medicine in Connecticut was revoked on 17 April 1984 based on excessive and inappropriate prescription of controlled substances and on various allegations of sexual misconduct with patients. Section 458.331(l)(b), Florida Statutes (1983) provides that disciplinary action may be taken against a physician whose “license to practice medicine [is] revoked, suspended or otherwise acted against ......

...discretion in doing so. Winslow v. Department of Professional and Occupational Regulation, 348 So.2d 352, 353 (Fla. 1st DCA 1977) cert. den. 365 So.2d 716 (Fla.1978). In this case, the issue is the proper interpretation of the pertinent language of Section 458.331(1)(b), under which the complaint against Stem was brought, namely, whether “having a license to practice revoked in another state” refers to the initial act of revocation or to the final order *79 of revocation resulting from the completion of that state’s appellate process....

...e issue of law to be ruled upon by the hearing officer: Whether Dr. Gentile is of good moral character and whether he has committed any act or offense within or without the state which will constitute a basis for disciplining a physician pursuant to Section 458.331, as required by Section 458.-313(l)(b), Florida Statutes (1981)? A final hearing was held on October 14, at which the attorney for the Board offered into evidence a substantial amount of testimony regarding appellant’s failure to di...

...is of good moral character and can safely engage in the practice of medicine. If appellant perjured himself by intentionally falsifying his application or untruthfully responding to Board inquiries, this is a valid ground for denying him a license. § 458.331(l)(a), Fla.Stat....

STRINGER, Judge. Dr. William Hammesfahr seeks review of a final order of the Board of Medicine (“the Board”) disciplining him for financial exploitation of a patient in violation of section 458.331(l)(n), Florida Statutes (2002)....

...Hammesfahr that several of his patients had actually improved after treatment, the ALJ also concluded that Dr. Hammesfahr had not engaged in false advertising concerning his treatment of strokes. On the third charge, the ALJ recommended discipline for a violation of section 458.331(l)(n), which prohibits “[e]xereising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not be limited to, the promoting or selling of services, goods, appliances, or drugs.” The ALJ found that Dr. Hammesfahr violated section 458.331(l)(n) by charging a patient $3000 for services that she did not receive....

...a $3000 treatment program but only received a $2000 treatment program. However, the record does not contain clear and convincing evidence to support the Board’s conclusion that the overcharge was the result of exploitation for financial gain under section 458.331(l)(n)....

...There is no evidence in the record that the overcharge was intentional. The overcharge could have been an administrative mistake by Dr. Hammesfahr’s office or simply the result of the patient’s early termination of the program. Either scenario does not support the trial court’s finding of a violation of section 458.331(l)(n). At best, the facts in this case provide a basis for a civil contract dispute between the parties. We reverse the final order of the Board disciplining Dr. Hammesfahr for financial exploitation of a patient in violation of section 458.331(l)(n)....

...(1981), consisting of a DOAH hearing officer’s order denying Boe-dy’s motion to dismiss an administrative complaint filed against Boedy by the Department of Professional Regulation. The complaint seeks a revocation or suspension of Boedy’s license to practice medicine, or other disciplinary action, pursuant to section 458.331, Florida Statutes (1981). Power to act finally upon the complaint is vested by statute in the Board of Medical Examiners, § 458.331(2), which has referred the matter for hearing by a DOAH hearing officer....

...est in assuring that nonpracticing physicians are able to ‘practice with reasonable care and safety.’ ” The hearing officer’s order of February 8, 1983, purports to deny Boedy’s motion to dismiss, saying: When Sections 458.301, 458.321 and 458.331, Florida Statutes (1981) are read, in pari materia, it is concluded that the voluntary deactivation of a medical license does not bar the petitioner from prosecuting the licensee for alleged violations of Chapter 458....

requirement) is invalid because it is unauthorized by section 458.-331(2), Florida Statutes. *756We strike the imposition

...The specific conduct complained of, namely, referring patients needing health care goods or services to a business entity in which the physician has an equity interest of ten percent or more after disclosure to the patients of the physician’s financial interest, is sanctioned by section 458.331(l)(gg), Florida Statutes (Supp....

...& Prof'l Regulation, 753 So.2d 745, 746-47 (Fla. 3d DCA 2000) (striking three violations because they were not alleged in the administrative complaint); Ghani v. Dep’t of Health, 714 So.2d 1113, 1114-15 (Fla. 1st DCA 1998) (reversing the finding that Ghani violated section 458.331, Florida Statutes (1993), by failing to order ambulance transport where the administrative complaint did not allege a failure to order ambulance transport)....

...Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), evidence in a license revocation proceeding must be as “substantial” as the consequences, we find the evidence in this record possesses the requisite substantiality. We also find that the standard of conduct required by section 458.331(1)(t), Fla.Stat....

...may make a finding of guilt but suspend imposition of judgment and penalty, or it may impose the judgment and penalty but suspend enforcement thereof and place the physician on probation, which probationary order may be vacated upon noncompliance. . Section 458.331 provides in part: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: (t) Gross or repeated malpractice or the failure to practice medicine with that level of ca...

penalties provided by the disciplinary guidelines. § 458.331(2), Fla. Stat. (1997); Fla. Admin. Code R. 64-B8-8

...We disagree with these arguments and affirm. I.  In 2016, the Department filed an administrative complaint against Dr. Omulepu seeking disciplinary action against his medical license. The Department alleged in a nine-count complaint that Dr. Omulepu violated § 458.331(1), Florida Statutes (2014). According to the allegations, during a three-day period in May 2015, four of Dr....

...The Department asserted that in all four cases, Dr. Omulepu deviated from the standard of care by using an improper concentration of epinephrine in a surgical solution that is used to reduce bleeding and failing to maintain accurate medical records of the concentration of epinephrine. See § 458.331(1)(m) & (t), Fla. Stat. It also alleged medical malpractice against Dr. Omulepu for puncturing the internal organs of two of the patients. See § 458.331(1)(t), Fla....

...orida’s Medical Practice Act. 2 Count I charged a failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, under section 458.331(1)(t), Florida Statutes....

...required by section 458.-331(1)(m). Count III (added by later amendment to the original complaint) charged a violation in connection with altering of appellant’s medical records after the filing of the administrative complaint, alleged to violate section 458.331(1)(m)....

...We likewise find lacking in substance appellant’s contention that the hearing officer and the Board, in ruling on the record-keeping charge, erroneously applied a “local” (Miami standard) whereas the statute mandates compliance with a “national” standard. As to the record-keeping charge, the statute, section 458.331(l)(m), imposes the requirement of keeping written medical records “justifying the course of treatment of the patient, including, but not limited to patient histories; examination results; test results; records of drugs prescribed, d...

...as to the FDA’s methods of defining items as “drugs,” not merely based on their substance, but on their methods of use and/or collateral measures necessary to their use. [[Image here]] 71. The term “legend drug” also appears in the practice act for physicians, which contains the following, in Section 458.331: (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s....

initiate the investigation of a physician. Section 458.331(9), Florida Statutes (1998 Supplement), provides:

...URIAM. In its amended administrative complaint, the Agency for Health Care Administration (AHCA) 1 alleged that appellant Philip William Lortz had violated four subsections of chapter 458, Florida Statutes (1995). Count One alleged a violation of subsection 458.331(1)(t); 2 Count Two alleged a violation of subsection 458.331(l)(j); 3 Count Three alleged a violation of subsection 458.331(1)(x); 4 *384 and Count Four alleged a violation of subsection 458.331(1)(s)....

...��in order to deal with his anger, in order to become more in touch with his feelings so that he did not act out inappropriately”) supports the legal conclusion that appellant was “unable to practice medicine with reasonable skill and safety.” § 458.331(1)(s), Florida Statutes (1995)....

...of Health has contracted with the Agency for Health Care Administration (AHCA) to provide consumer complaint, investigative, and prose-cutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate. . Subsection 458.331(l)(t), Florida Statutes (1995), provides the following grounds for disciplinary action: (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. . Subsection 458.331(l)(j), Florida Statutes (1995), provides the following grounds for disciplinary action: (j) Exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. . Subsection 458.331 (l)(x), Florida Statutes (1995), specifies as a grounds for disciplinary action: (x) Violating any provision of this chapter, a rule of the board or department.......

...e, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sex *384 ual misconduct in the practice of medicine is prohibited. .Subsection 458.331 (l)(s), Florida Statutes (1995), provides the following grounds for disciplinary action: (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chem...

...Because Appellant was found guilty of acts not sufficiently alleged in the complaint, we reverse. The complaint charged Appellant with the failure to practice medicine with the level of care, skill, and treatment as a reasonably prudent similar physician in violation of section 458.331(l)(t), Florida Statutes, and with failing to keep medical records pursuant to section 458.331(l)(m), Florida Statutes. The administrative law judge (“ALJ”) dismissed both counts of the complaint for lack of sufficient proof. The Department of Health filed exceptions to the order as to the violation of section 458.331(l)(m), Florida Statutes....

...The ALJ accepted Appellant’s testimony as credible that he had created these documents, even though they were not contained in the patient’s medical records. Based on this finding, the ALJ dismissed the count charging Appellant with a violation of section 458.331(l)(m), Florida Statutes; however, the Board of Medicine rejected this finding and concluded that Appellant was charged not only with failure to create certain medical records, but also with failure to retain possession of those documents....

...Dep’t of Prof'l Reg., Bd. of Med., 563 So.2d 805 (Fla. 1st DCA 1990). In this case, the complaint charged Appellant with failing to properly document certain records and failing to create or complete certain documents. The complaint did make reference to section 458.331(l)(m), Florida Statutes, but it did not contain any specific factual allegations that Appellant failed to retain possession of the medical records....

...The Recommended Order specifically finds that Dr. Rupp should be punished for failing to do that which the Judge’s own Recommended Order specifically acknowledges could not be done. The Recommended Order thus seeks to punish Dr. Rupp for non-compliance with the notification requirements of section 458.331(l)(kk), Florida Statutes, despite the fact that Dr....

...Thus, the instructions erroneously declare that the hearing is not a de novo review, while stating that the full record before the Judge would be reviewed. Here, the Judge specifically found that it was physically impossible for Dr. Rupp to have complied with the requirements of section 458.331(l)(kk), Florida Statutes....

...Rupp did not file “exceptions” because she recognized that the Judge’s findings of law and fact were accurate, as she tried to explain at the hearing. She does not dispute the sequence and timing of events as detailed in the Recommended Order, and she does not take issue with the Judge’s conclusion of law that “[subsection 458.331(l)(kk), Florida Statutes, *795 does not provide that notice must be given within 30 days of receipt of the disciplinary action, but within 30 days of the action being taken.” Dr....

...h suspended his license for failure “to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.” See Fla. Stat. section 458.331(l)(t)(1981)....

specific finding that the statutory provision, § 458.331(l)(t), Florida Statutes (1985), challenged by

...The order revoking his license to practice medicine in the State of Florida fully approved and incorporated the findings of fact and conclusions of law set forth in the recommended order of the hearing officer. The hearing officer found that, with respect to patients B.J., L.I., and D.B., Lieberman had violated section 458.331(1)(t), Florida Statutes (1985), by failing to provide any of them with that level of medical skill, treatment, and care recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. As to patients L.I. and D.B., the hearing officer found Lieberman also had violated sections 458.329 and 458.331(1)(k), Florida Statutes (1985), in using the patient/physician relationship for purposes of engaging them in sexual activity....

...Other than Lieberman, L.I., and the therapist, no other witnesses testified as to whether the sexual encounters between Lieberman and L.I. took place. It was especially important to determine whether the sexual encounters with L.I. occurred since, under section 458.331(1)(k), Florida Statutes (1985), a patient is presumed to be incapable of consenting to sexual activity with her physician....

...This cause is before us on petition for writ of certiorari to review an order of the hearing officer denying Dr. Boedy’s motion for a protective order, entered in response to the Department’s order directing him to submit to a series of psychiatric examinations. 1 In his petition, Dr. Boedy asserts that Sections 458.331(l)(s) and 458.-339, Florida Statutes (1981), which require involuntary medical examinations in disciplinary proceedings under the Medical Practices Act are unconstitutional as a violation of the privilege against compelled self-incrimination....

...atients, though they may result in temporary suspension of his license to practice medicine, cannot be considered “penal” in character for purposes of the Fifth Amendment privilege against compelled self-incrimination. We therefore find Sections 458.331(l)(s) and 458.339, Florida Statutes (1981), to be constitutional, but certify the following question to the Florida Supreme Court as a question of great public importance: WHETHER THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINA...

...Department of Professional and Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977), involved alleged acceptance by a physician of "kick-backs" from a hospital, based upon the hospital’s charges for patients referred to the hospital by the physician. .Section 458.331(2), Florida Statutes, provides for the following types of disciplinary action, where appropriate: (a) Refusal to certify to the department an applicant for licensure....

...by requiring them to notify a parent or guardian when a minor intends to have an abortion. Physicians’ own interests are at stake here, too. They are subject to discipline if they violate the notice provisions of the Act. See §§ 390.01115(3)(c), 458.331(l)(z), Fla....

...State, 619 So.2d 418, 419 (Fla. 5th DCA 1993), affirmed, 640 So.2d 1084 (Fla.1994). Only physicians, indeed, are subject to any penalty under the Act. A physician who violates the terms of the Act faces possible loss of his or her license to practice medicine. See § 458.331(2), Fla....

...2972 , 111 L.Ed.2d 405 (1990) (concluding that “a bypass procedure that will suffice for a consent statute will suffice also for a notice statute”). VI. We reject plaintiffs’ contention that the Act is facially unconstitutional be *269 cause it violates the due process rights of physicians. Sections 458.331(l)(z) and 459.015(l)(dd), Florida Statutes (1999), which make a physician subject to discipline if the physician procures, or aids or abets in procuring, an unlawful abortion, do not purport to make physicians guarantors of their patients’ truthfulness....

...Turlington, 510 So.2d 292, 294 (Fla.1987). Physicians may be disciplined for “[gjross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions or circumstances,” §§ 458.331(l)(t), 459.015(l)(x), Fla.Stat. (1999), or for “[pjrocuring, or aiding or abetting in the procuring of, an unlawful termination of pregnancy.” §§ 458.331(l)(z), 459.015(l)(dd), Fla.Stat....

...er pertinent fact. *270 Finally, the plaintiffs complain that the Act does not define exactly what amounts to “reasonable efforts.” But regulations governing physicians (among others) are commonly couched in terms of reasonableness. See, e.g., §§ 458.331(l)(s), (l)(t), & (l)(v), Fla.Stat....

...miners and that the penalties imposed were within the purview of the statute. *188 No reversible error having been demonstrated, the orders appealed are affirmed. Affirmed. . Former section 458.1201(l)(j), Florida Statutes (1977), is now codified at section 458.331(l)(g), Florida Statutes (1981)....

...contest may be entered “without any collateral implications to the defendant in other civil or criminal proceedings.”. Id. at 1117 . Ayala, a physician, had entered a nolo contendere plea; however, the statute governing his licensing proceeding, section 458.331(l)(c), specifically provided that a nolo contendere plea “shall be considered a conviction.” Section 489.129(l)(b), governing this proceeding, did not contain a similar provision in 1990, although it does now....

...e wrongfulness of his actions. As a result, Lusskin was also required to enter into a monitoring agreement with the Physicians Recovery Network (“PRN”). In 1996, the board filed an administrative complaint against Lusskin, finding a violation of section 458.331(l)(s), Florida Statutes, and citing Lusskin’s inability to practice medicine with reasonable skill and safety by reason of mental illness....

...ion to impose a higher penalty than that recommended by the hearing officer was not inconsistent with the requirements of section 458.311, Florida Statutes. Rather, the board has discretion to depart from the guidelines and impose a greater penalty. Section 458.331(l)(s), Florida Statutes, provides that a doctor who is unable to “practice medicine with reasonable skill and safety ......

violating section 458.331(l)(m), Florida Statutes, and four counts of violating section 458.331(l)(t), Florida

...ic from harm and preserving licensees’ “property interest prior to giving them full due process.” Nath v. State Dep’t of Health, 100 So. 3d 1273, 1276 (Fla. 1st DCA 2012). The Department’s order alleged that Dr. Stover had violated section 458.331(1)(t), Florida Statutes, and Rule 64B8-9.009(2)(f), Florida Administrative Code, by “performing intramuscular and submuscular fat injections” during the gluteal fat transfer and fat grafting procedure on her patient....

to note my agreement that the language of section 458.331(l)(n), Florida Statutes (1985), requiring that

...re referrals and for conspiracy to defraud the United States. Their convictions were affirmed on appeal. United States v. Liss, 265 F.3d 1220 (11th Cir.2001). The Board of Medicine then determined probable cause existed to believe that Liss violated section 458.331(1)(c), Florida Statutes (2001), and it directed the Department of Health to file an administrative complaint against Liss’s license....

1985), in which a mandatory interpretation of section 458.-331(l)(c), providing that a nolo plea “shall be

...and document the provision of such information in their patients’ medical records); id. § 458.325 (requiring physicians, prior to administering electroconvulsive or psychosurgical procedures, to disclose information regarding the procedure); id. § 458.331 (listing various grounds for disciplinary action, including “the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct” to solicit patients; “failing to keep legible ....

...t of jurisdiction. Lauda v. H.F. Mason Equip. Corp., 407 So.2d 392 (Fla. 3rd DCA 1981). . We have before us the complete transcript of the brief proceeding below as well as all of the relevant documents necessary for adequate review by this court. . § 458.331(3), F.S., provides: “(3) The board shall not reinstate the license of a physician, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and cond...

replaced in chapter 79-302, Laws of Florida, by section 458.-331(1)(t), Florida Statutes (1979).2 With regard

reasonable skill and safety as required by Section 458.-331(3), F.S.” Thereafter Griffith filed a petition

this case, has been in effect since 1979. See § 458.331(1)(n), Fla.Stat. (1985). According to a pleading

v. J.W.C. Co., Inc. (Fla. 1st DCA 1981). . § 458.331(2), Fla.Stat. (1981); § 893.11, Fla. Stat. (1981)

...He contends that had the hearing been reset, he could have presented mitigating factors at the reset hearing. Our standard of review of an agency’s interpretation of a statute is de novo. Amend. VI, Art. V, § 21, Fla. Const. (declaring that appellate courts may no longer 2 Section 458.331(1)(t), Fla. Stat. (2012) (subjecting a licensee to discipline for committing medical malpractice as defined in section 456.50, Fla. Stat.); section 458.331(1)(q), Fla. Stat. (2012) (subjecting a licensee to discipline for prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice); Section 458.331(1)(m), Fla....

DAVIS, Judge. Appellant, Balakrishna Nair, M.D., appeals from an order of the Board of Medicine (“the Board”) determining that appellant had on two occasions violated section 458.331(1)©, Florida Statutes....

...Because the administrative action against appellant with regard to patient 2 involved revocation or suspension of his license, thereby requiring the Department to demonstrate misconduct by clear and convincing evidence, we conclude that the Board erred in finding appellant guilty of a violation of section 458.331(1)©, Florida Statutes, by a preponderance of the evidence and imposing a $5,000 administrative fine for that violation....

...eging, among other things, that appellant exercised influence within a physician-patient relationship for purposes of engaging patient 1 and patient 2 in sexual activity. The ad *206 ministrative complaint alleged that appellant’s conduct violated section 458.331(l)(j), Florida Statutes (1989)....

...appellant exercised influence within a physician-patient relationship for the purpose of engaging patient 2 in sexual activity. The hearing officer recommended that the Board enter a final order finding appellant guilty of two separate violations of section 458.331(l)(j) and imposing an administrative fine of $10,000 ($5,000 per offense)....

...On February 5, 1994, the Board met to consider the hearing officer’s recommended order. On April 5,1994, the Board entered a final order approving and adopting the hearing officer’s recommended findings of fact and finding that appellant had on two occasions violated section 458.331(l)(j), Florida Statutes, as charged in the administrative complaint....

...icense be restricted forever so that appellant must always have an employee present when he examines, diagnoses, treats or otherwise meets with a female patient. Appellant contends that the , Board erred in finding appellant guilty of a violation of section 458.331(l)(j) by only a preponderance of the evidence....

...Dep’t of Professional Regulation, Bd. of Medicine, 574 So.2d 153, 154, n. 2 (Fla. 1st DCA 1990). The correct standard for revocation or suspension of a professional license is that the evidence must be clear and convincing. Id. Appellee responds that, under section 458.331(3), Florida Statutes, violations proven by a preponderance of the evidence should not be barred as being the basis for a lesser penalty. Section 458.331(3), Florida Statutes (1989), provides: In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence, (emphasis added) We hold that the Board erred in concluding that appellant was guilty of a violation of section 458.331(l)(j) by a preponderance of the evidence with regard to patient 2....

...In the present case, the Department sought, among other penalties, revocation or suspension of appellant’s license. Because the administrative action against appellant did “involve revocation or suspension of license,” under the plain language of section 458.331(3), the Department was required to prove its case by clear and convincing evidence. Because the Department proved a violation of section 458.331(l)(j) with regard to patient 2 by a mere preponderance of the evidence, the Board erred in finding a violation of that statute and in imposing a $5,000 administrative fine....

...Because the Board did not decide to include in its final order that this restriction would continue forever, the Board erred in entering a final order which imposed the restriction forever. Accordingly, we reverse the Board’s determination that appellant was guilty of a violation of section 458.331(l)(j) as to patient 2 and reverse the imposition of a $5,000 administrative fine for that violation....

...ts with female patients, we reverse that part of the final order which restricts appellant’s practice forever, and we remand this case to the Board. We affirm the Board’s order in all other respects. ALLEN, J., and SMITH, Senior Judge, concur. . Section 458.331(1)(j), Florida Statutes (1989) provides that disciplinary action may be taken against a physician for "[c]xcrcising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. ..." . The Department has the authority to designate approved impaired practitioner treatment programs pursuant to section 458.3315, Florida Statutes (1989), and section 455.261, Florida Statutes (1993)....

...Count IV asserted that Dasilva disseminated or caused the dissemination of an advertisement without clearly identifying himself as a physician assistant by displaying his VASER liposuction course certificate on his office wall, thereby violating section 458.331(1)(nn), Florida Statutes (2021), through a violation of Florida Administrative Code Rule 64B8- 30.011(5). Count V alleged that by independently performing those plastic surgery procedures identified in Count I, Dasilva violated section 458.331(1)(nn), Florida Statutes, (2021), through a violation of Rule 64B8-9.009(2)(o), which provides that all physicians performing office surgery must be qualified by education, training and experience to perform any procedure performed in the office surgery setting. Count VI asserted that by performing a “Level II and/or Level III surgery” at his office on one or more occasions without staff privileges at any hospital or satisfactory training such as board certification, Dasilva violated section 458.331(1)(nn), Florida Statutes (2021), through a violation of Rule 64B8-9.009(4)(b)2.a....