Borges v. Dept. of Health

Third District Court of Appeal
State of Florida
Opinion filed August 13, 2014.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D13-1529
Lower Tribunal Nos. 07-35238, DOAH 12-0005PL
________________
Gustavo B. Borges, D.D.S.,
Appellant,
vs.
Department of Health,
Appellee.
An Appeal from the Department of Health, Florida Board of Dentistry.
Schochet Law Group, and Randall M. Shochet (Greenacres), for appellant.
Therese A. Savona, Chief Appellate Counsel (Tallahassee), for appellee.
Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
LOGUE, J.
Gustavo Borges appeals a final order of the Florida Board of Dentistry (“the
Board”) revoking his license to practice dentistry based on his conviction of
knowingly receiving child pornography in violation of 18 U.S.C. §
2252(A)(a)(2)(A). The record includes the testimony of eight lay witnesses and
four expert witnesses. The order of the administrative law judge which is the basis
for the Board’s decision, however, discusses the testimony of only one witness, the
respondent. The testimony of the other witnesses is not acknowledged, much less
discussed, much less are factual findings made regarding their testimony.
This case raises the important issue of whether the conviction of knowingly
receiving child pornography relates to the practice of dentistry. This issue seems to
have been the subject of most of the testimony of the expert witnesses, which
agreed on some points and disagreed on others. This issue was also addressed by
the lay witnesses. But, as we stated earlier, the order makes no fact findings
regarding the testimony on this point.
Rather than review the evidence in the record and make appropriate findings
of fact, the administrative law judge, and ultimately the Board, relied solely on a
purported concession contained within Borges’s proposed recommended order to
establish that the federal conviction related to his ability to practice dentistry.
Borges asserts that the statement from the proposed order is being misinterpreted.
He notes that during the hearing his counsel consistently argued that the crime was
not related to the practice of dentistry (“How [is receiving electronic images on a
computer] related to his ability to practice? It doesn’t. It’s not related at all.”).
Placed in context, it seems clear that Borges’s counsel did not make this statement
in the proposed order for the purpose of dispensing with the need for proof on that
2
particular issue which, after all, was one of the main issue contested during the
hearing. In light of this circumstance, and in light of the fact that the proposed
order was not adopted, we find that such a statement does not constitute a
sufficient factual foundation to resolve the crucial factual and legal issue upon
which the Board can revoke Borges’s professional license.
A recommended order by an administrative law judge must contain
“findings of fact, conclusions of law, and recommended disposition.” § 120.57,
Fla. Stat. (2008); see also Fla. Admin. Code R. 28-106.216(1) (2008) (stating that a
recommended order “shall include a caption, time and place of hearing,
appearances entered at the hearing, statement of the issues, findings of fact and
conclusions of law, separately stated, and recommendation for final agency
action”). The statutory and regulatory provisions’ requirement of factual findings
is ultimately based on principles of due process. Gentry v. Dep’t of Prof’l &
Occupational Regulations, State Bd. of Med. Examiners, 283 So. 2d 386, 387 (Fla.
1st DCA 1973) (“It has been repeatedly held by the courts of this state that in order
to assure due process and equal protection of the law, every final order entered by
an administrative agency in the exercise of its quasi-judicial functions must contain
specific findings of fact upon which its ultimate action is taken.”).
We find this order does not sufficiently comply with the requirement to
make express findings of fact. As a reviewing court, we are left to guess whether
3
the administrative law judge disbelieved all or some of the testimony or simply
found the testimony irrelevant to his recommended disposition. Accordingly, we
remand to the Board so that it can refer this matter to the administrative law judge
to make sufficient findings. See Cohn v. Dep’t of Prof’l Regulation, 477 So. 2d
1039, 1047 (Fla. 3d DCA 1985) (“When the entity charged with finding facts upon
the evidence presented, the hearing officer, has, for whatever reason, failed to
perform this function, the appropriate remedy is not for the agency (or the court of
appeal) to reach its own conclusion, but rather to remand for the officer to do so.”);
Lamphier v. Fla. Bd. of Med. Examiners, 492 So. 2d 481, 483 (Fla. 4th DCA
1986) (holding under Administrative Procedures Act, where fact findings were
insufficient, case should be remanded with directions that an amended order be
entered adequately setting out the grounds for denial).
In so holding, we are not indicating that findings of fact must address the
testimony of each and every witness or address the weight given to each exhibit
admitted into evidence. However, the recommended order should address the
factual controversies that were the subject of the hearing to the extent they are
relevant to the recommended disposition or, however briefly, indicate why the
testimony was not pertinent.
Reversed and remanded.
4