BRETT L. LUSSKIN, M.D., APPELLANT,
v.
DEPARTMENT OF HEALTH, BOARD OF MEDICINE, APPELLEE
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Dr. Lusskin appealed the Board of Medicine's revocation of his medical license, challenging the Board's failure to comply with statutory requirements for administrative decisions. The court reversed and remanded because the Board failed to provide the particularized reasoning and record citations required by Florida Statutes § 120.57(1)(i) when it rejected the administrative law judge's penalty recommendation.
The Board failed to comply with section 120.57(1)(i) because it merely referred to the record in general without providing the particularized reasoning and specific record citations required by statute. Simple reference to the record in general is insufficient compliance.
[1] A state board's failure to comply with statutory requirements for stating reasons and citing the record when rejecting an administrative law judge's penalty recommendatio…
[2] When a state board rejects an administrative law judge's penalty recommendation, it must state with particularity its reasons by citing to the record in justifying the ac…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Simply referring to the record in general is insufficient to comply with this subsection.”
Establishes that the Board's vague reference to 'record evidence' without particularized citations fails to meet statutory requirements for administrative decisions.
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Join FLexlaw to unlock all legal intelligenceDr. Lusskin, a physician with a history of prior appeals, had his license suspended. After an evidentiary hearing, the administrative law judge found …
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MAY, J.
Strict compliance with statutory requirements dictates the result in this case. Dr. Lusskin appeals a final .'order of the. Department of Health, Board of Medicine [the Board], that revoked his medical license. The Board’s failure to comply with section " 120.57(1)(Z), Florida Statutes (2001), warrants a reversal, and remand to the Department of Health:
The procedural history of this case is fairly long. Suffice it, to. say that this Court has previously .affirmed and reversed decisions of the Board concerning Dr. Lusskin. Lusskin v. Dep’t of Prof'l Regulation Bd. of Med., 611 So. 2d 1 (Fla. 4th DCA 1992); Lusskin v. Dep’t of Prof'l Regulation Bd. of Med., 731 So. 2d 67 (Fla. 4th DCA 1999). Upon remand from the last appeal, the Board filed an amended administrative complaint, alleging that the doctor was unable, to practice medicine with reasonable skill and safety due to illness and has not cooperated with the Physicians Recovery Network [PRN] in monitoring his contract.
After an evidentiary hearing, the administrative law judge found that the doctor had failed'to comply with monitoring requirements in two respects. He concluded that the doctor suffers from a psychological illness that interferes with his ability to practice medicine with reasonable skill and safety, but that the doctor was able to practice with reasonable skill and safety when monitored under the PRN contract. The judge recommended that the Board lift his suspension, which had resulted from the prior hearing, and reinstate his license with proper restrictions.
The Board accepted all of the findings of the administrative law judge, but rejected the penalty recommendation. Rather than lift the suspension and reinstate his license, it revoked the doctor’s license. In doing so, it stated that there was “record evidence that [the doctor] is unable to comply with the requirements of the Physician’s Recovery Network, without monitoring by which [he] is unable to practice medicine with reasonable skill and safety.”
The Board is imbued with the authority to accept or reject the hearing officer’s penalty recommendation. See Criminal Justice Standards and Training Comm’n v. Bradley, 596 So. 2d 661 (Fla.1992). When it does so, it must conduct a review of the complete record, and state “with particularity its reasons therefor in the order, by citing to the record in justifying the action.” § 120.57(l)(i), Fla. Stat. (2001). Simply referring to the record in general is insufficient to comply with this subsection.
We reverse the order of the Board and remand the case for compliance with section 120.57(l)(i), Florida Statutes (2001). Orders that fail to contain the statutorily mandated reasoning and récord citation also fail to provide this court with the information necessary to properly review the Board’s action.
SHAHOOD and GROSS, JJ., concur.
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Citator
Cited By
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Fla. Parole Comm'n v. Taylor, 132 So. 3d 780 (Fla. 2014)…r the purpose of entering an amended order which complies with the requirements of [section 120.57(1) ], assuming that the Board, on remand, chooses not to accept the hearing officer’s recommended penalty.”); Lusskin v. Dep’t of Health, Bd. of Med., 820 So. 2d 424, 426 (Fla. 4th DCA 2002) (“The Board is imbued with the authority to accept or reject the hearing officer’s penalty recommendation. ... We reverse the order of the Board and remand the case for compliance with section 120.57(1)(l), Florida Statutes…
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Douglas J. Phillips, Jr., D.D.S. v. Bd. of Dentistry, 884 So. 2d 78 (Fla. 4th DCA 2004)…ity is to facilitate judicial review.”); Fla. Power & Light Co. v. State, 693 So. 2d 1025, 1027 (Fla. 1st DCA 1997); Lewis v. Dep’t of Prof'l Regulation, 410 So. 2d 593, 594 (Fla. 2d DCA [*81] 1982); see also Lusskin v. Dep’t of Health, Bd. of Med., 820 So. 2d 424, 426 (Fla. 4th DCA 2002), (“Orders that fail to contain the statutorily mandated reasoning and record citation also fail to provide this court with the information necessary to properly review the Board’s action.”). We distinguish Prysi v. Departme…
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Bret L. Lusskin, M.D. v. Dep't OF Health, 866 So. 2d 733 (Fla. 4th DCA 2004)…rd’s decision to revoke Lusskin’s medical license because its order failed to state the reasons for rejecting the hearing officer’s penalty recommendation in accordance with section 120.57, Florida Statutes. Lusskin v. Dep’t. of Health, Bd. of Med., 820 So. 2d 424 (Fla. 4th DCA 2002). On remand, the board clarified its ruling, stating that Lusskin demonstrated either an inability or refusal to comply with the PRN contract in two “significant” instances. First, Lusskin failed to advise his staff of their resp…
Authorities Cited
- Henry v. State, 596 So. 2d 661 (Fla. 1992)
- Bret L. Lusskin, M.D. v. State of Fla. Agency for Health Care Admin., 731 So. 2d 67 (Fla. 4th DCA 1999)
- Bret L. Lusskin, M.D. v. Dep't of Prof'l Reg., 611 So. 2d 1 (Fla. 4th DCA 1992)
- Rogers v. State, 611 So. 2d 1 (Fla. 2d DCA 1992)