By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law
Following is a summary of a recent administrative hearing case on an issue relevant to health law, decided by the Florida Division of Administrative Hearings (DOAH).
Department of Business & Prof'l Reg., Div. of Hotels and Restaurants v. Clinton Green, DOAH Case No. 14-2557 (Corrected Recommended Order Aug. 20, 2014).
FACTS: On April 7, 2014, the Department of Business and Professional Regulation, Division of Hotels and Restaurants ("DBPR") issued an Administrative Complaint alleging Clinton Green violated section 508.013(5), Florida Statutes, by operating a mobile food establishment without a license. Mr. Green requested a formal administrative hearing and represented himself at the final hearing. He readily admitted at the hearing that he did not have a license to operate a public food service establishment.
In his defense, Mr. Green asserted he did not need a license, for various reasons. For instance, Mr. Green asserted that he has a God-given right to provide for his family, which cannot be restricted by man. Mr. Green also argued that the State of Florida is the only "entity" which can require him to have a license, but that since the State of Florida is a fictitious person, it is unable to speak directly to him to impose such a requirement. Instead, the proceeding was based solely on the words of the State's agents, which he contended have no force or effect because they are not the State. Lastly, Mr. Green argued that he could only be required to have a license to sell food if he entered into a contract with the State, giving the State permission to govern his actions.
OUTCOME: The ALJ found that Mr. Green was operating without the required license. Because of Mr. Green's "utter disregard for the applicability of law to his operations," the ALJ recommended the imposition of a $500.00 fine.
The case summary above was originally published in the Administrative Law Section Newsletter, Vol. 34, No. 2 (Dec. 2014), a publication of The Administrative Law Section of The Florida Bar.
Blog Editor’s Comments:
This case is illustrative for health professionals and health facilities, all which must be licensed under Florida law. You must follow all laws and regulations to practice a profession or operate a facility that requires a license.
Unless there is a specific exemption that applies to your circumstances, comply with all legal requirements scrupulously. In the health care field, failure to comply can mean a serious criminal penalty.
Also, use your common sense. Don’t fall for those extremist organizations’ arguments that the state of federal government has no right to enforce the law. The prisons are full of others who have made this argument before.
Do you agree with Mr. Green that he has a right to work without a license in order to provide for his family? Do you think this is a fair case against him? Please leave any thoughtful comments below.
Contact Health Law Attorneys Experienced in Handling Licensure Matters.
If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you as to the effects a potential outcome could have on your license.
The attorneys of The Health Law Firm routinely represent physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while preserving the practitioner’s license. About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620. KeyWords: Criminal law, license, defense attorney, health law, health care attorney, health care lawyer, health investigation, medical license, conviction, physician, physician criminal charges, Department of Health, DOH, professional license, misdemeanor, license disciplined, license revoked, health attorney, plea of nolo contendere, finding of guilt, adjudication withheld, diversion program, DOH conviction, adjudication, discipline, criminal trial, defense lawyer, DOAH, DBPR,Department of Business and Professional Regulation, restaurant license, The Health Law Firm reviews "The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 1996-2015 The Health Law Firm. All rights reserved.