Professional Board Is Not Allowed to Ask About Misconduct Not Charged in Administrative Complaint at Informal Hearing
Wednesday, March 19, 2014
The Department of Health (“DOH”) filed an administrative complaint against Gonzalez, a licensed chiropractor, for alleged statutory and rule violations. The alleged violations involved recordkeeping practices and failure to provide records to a patient upon request.
Gonzalez elected to have an informal hearing and did not dispute the findings of fact in the administrative complaint. At the informal hearing, Gonzalez addressed the alleged violations in mitigation of any penalty assessment. The Board of Chiropractic Medicine (“Board”) then raised additional issues outside the four corners of the complaint, including business location, staffing, and diagnostic practices.
The Board adopted the findings in the administrative complaint, imposed a fine, required Gonzalez to pass a written examination, and required monitoring of his performance.
On appeal, Gonzalez argued that the Board should have terminated the informal proceeding when it became apparent material facts were in dispute. He further argued that the Board had violated his right to due process by considering matters not charged in the administrative complaint.
The court rejected Gonzalez’ argument regarding his right to a formal hearing, holding that he had waived that right by not requesting a formal hearing during the informal proceeding before the Board. However, the court agreed with Gonzalez that his right to due process had been violated, because the Board had strayed into matters not charged in the administrative complaint, related to Gonzalez’ competency to practice chiropractic medicine. The court rejected DOH’s argument that the error was harmless, concluding from the final order and comments made by the Board members in the hearing to consider entry of a final order that the penalty imposed appeared to be directly related to Gonzalez’ competency rather than to the violations alleged in the complaint. The court reversed and remanded for a new hearing by the Board, at which the Board was directed to confine itself to matters charged in the administrative complaint.
Gonzalez v. Department of Health, 120 So. 3d 234 (Fla. 1st DCA 2013) (Opinion filed August 30, 2013).
About the Author: The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section Newsletter, Col. 36, No. 2 (Dec. 2013).
Tag Words: Department of Health, DOH, administrative complaint, doctor, physician, formal hearing, informal hearing, chiropractor, licensed chiropractor, failure to provide records to patient, record keeping, mitigation, Board of Chiropractic Medicine, informal proceeding, doctor complaint, physician complaint, chiropractic medicine, final order, administrative law
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