
    Carlos C. VICARIA, M.D., Appellant, v. The DEPARTMENT OF HEALTH, Appellee.
    No. 97-1364.
    District Court of Appeal of Florida, Third District.
    June 3, 1998.
    Rehearing Denied Aug. 12, 1998.
    
      RasMn & Raskin and Robert J. Becerra, Miami, for appellant.
    Kathryn L. Kasparak, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   GODERICH, Judge.

The respondent, Carlos C. Vicaria, M.D., appeals from a final order of the Florida Board of Medicine. We affirm.

On July 26, 1994, the Department of Health filed a four-count administrative complaint alleging that Vicaria, a licensed physician in the State of Florida, had committed gross or repeated malpractice, had failed to keep written medical records justifying the course of treatment of a patient, had inappropriately prescribed medication to a patient prior to examining her, and had backdated a patient’s admission note. Those charges were based upon Vicaria’s failure to examine a forty-six year-old female patient during the eleven hours that she was hospitalized prior to her death.

Although the case was originally submitted to the Division of Administrative Hearings, on March 3, 1997, the parties filed a Joint Motion to Relinquish Jurisdiction that provided, in relevant part, as follows:

1. [Vicaria] has provided counsel for [the Department] with a new Election of Rights form indicating that he agrees not to contest the allegations of the Administrative Complaints filed in this matter, but wishes to be accorded an informal hearing pursuant to Section 120.57(2), Florida Statutes, at which time [he] will be permitted to submit oral and written evidence in mitigation to the Board of Medicine.
2. Accordingly, there are no longer any remaining material disputes of fact in this matter.

On March 6, 1997, the administrative law judge entered an order granting the motion.

On April 4, 1997, the matter came before the Board of Medicine. At the hearing, the Board accepted and adopted the allegations of fact and the conclusions of law as articulated by the Department of Health in the administrative complaint. The Board also considered the mitigating evidence presented by Vicaria.

The Department of Health recommended a penalty of a thirty-day suspension of Vica-ria’s license, an administrative fine of $5,000, a probationary period of eighteen months with indirect supervision, and continuing education requirements in risk management and record keeping. On the other hand, Vicaria sought a lesser penalty that required no suspension and consisted of a fine, community service, and continuing medical education.

The Board of Medicine ultimately voted to impose a penalty that consisted of a one-year suspension of Vicaria’s license, with six months stayed pending compliance with the other requirements of the order, including continuing medical education, followed by three years of probation, and an administrative fine of $2,500. On May 1,1997, the final order was entered. Vicaria’s appeal follows.

Vicaria contends that the Board of Medicine’s final order of suspension is legally insufficient because it fails to state with particularity the reasons, with supporting citations to the record, why the Board increased the penalty from that recommended by the Department of Health. § 120.57(l)(j), Fla. Stat. (1997). We disagree with Vicaria’s contention that the Board’s final order of suspension is legally insufficient and find that Vicaria’s reliance on section 120.57(1) is misplaced.

Section 120.569, Florida Statutes (1997), reads, in pertinent part, as follows:

(1) The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency.... Unless waived by all parties, s. 120.57(1) applies whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, s. 120.57(2) applies in all other cases.

Vicaria correctly states that section 120.57(1), the section* that provides additional procedures for hearings involving disputed issues of material fact, does contain a requirement that an agency that wishes to deviate from the penalty recommended by the hearing officer shall completely review the record, state with particularity its reasons for the modification, and provide record citations justifying the action. § 120.57(l)(j), Fla. Stat. (1997). However, section 120.57(2), the section that provides additional procedures for hearings involving no disputed issues of material fact, contains no such requirement.

In the instant case, the parties specifically expressed their intent to conduct an informal hearing pursuant to section 120.57(2) because there were no disputed issues of material fact. To this end, the parties stipulated in their Joint Motion to Relinquish Jurisdiction that “there are no longer any remaining material disputes of fact in this matter” and that Vicaria would be “accorded an informal hearing pursuant to Section 120.57(2), Florida Statutes.”

Because the section that dictates additional procedures for hearings involving no disputed issues of material fact contains no requirement that an agency that deviates from the recommended penalty must state with particularity the reasons for the deviation, we must construe this to mean that the legislature did not intend for this requirement to apply to hearings involving no disputed issues of material fact. James v. Department of Corrections, 424 So.2d 826, 827 (Fla. 1st DCA 1982)(“Expressio unius est exclusio alterius is a general principle of statutory construction which states that the mention of one thing implies the exclusion of another. Thus, where a statute enumerates the things on which it is to operate, it is ordinarily construed as excluding from its operation all those not expressly mentioned.”). Therefore, we conclude that the Board of Medicine’s final order of suspension is legally sufficient.

Alternatively, Vicaria argues, that at the hearing, he objected to the severity of the penalty and that the Board of Medicine failed to comply with the procedures for hearings not involving disputed issues of fact by failing to provide a written explanation for overruling the objection within seven days. § 120.57(2)(a)(3), Fla. Stat. (1997). A careful reviéw of the hearing transcript reveals that although Vicaria objected to the severity of the penalty that was imposed, he provided no factual or legal basis for the objection. Thus, the Board was not obligated to provide Vica-ria a written explanation for overruling the objection.

.Lastly, we note that the Board of Medicine acted well within its discretion in choosing to increase the recommended penalty and properly sanctioned Vicaria within the recommended range of penalties provided by the disciplinary guidelines. § 458.331(2), Fla. Stat. (1997); Fla. Admin. Code R. 64-B8-8.001.

Affirmed.

COPE, Judge,

concurring.

I join Judge Goderich’s opinion. I would add that, in my view, section 120.57(2)(a)(3), Florida Statutes (1997), does not apply to the Board of Medicine’s choice of discipline.

Section 120.57(2)(a)(3) applies to informal hearings, i.e., hearings in which there are no disputed issues of material fact. The statute states, “If the objections of the parties are overruled, [the agency shall] provide a written explanation within 7 days.” This provision follows a statutory subdivision which declares the right of the parties to present written or oral evidence. See id. § 120.57(2)(a)(2). When read in context, subdivision 3 simply means that if an eviden-tiary objection is overruled, then the agency must provide a written explanation within seven days.

In this case, the administrative prosecutor argued in favor of more severe discipline, and the doctor argued for more lenient discipline. In doing so, each party in a loose sense could be said to be' objecting to the discipline proposal of the opposing side. But that is not the sort of “objection” which is contemplated by section 120.57(2)(a)(3). As Judge Goderich has ably explained, if the Legislature wanted there to be- a written explanation for the agency’s choice of discipline, the Legislature would have enacted within section 120.57(2) a provision similar to section 120.57(l)(j).

There is a sound reason for the difference in the two statutory provisions. In a fprmal hearing under section 120.57(1), Florida Statutes, there is a full evidentiary hearing before an administrative law judge (ALJ). The ALJ has the opportunity to hear the , evidence in person, observe the demeanor of the parties, resolve disputed factual issues, and prepare the recommended order — including the recommendation on discipline. In recognition of the superior vantage point of the ALJ, section 120.57(l)(j) provides that“[t]he agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.” Since the agency which issues the final order — in this case, the Board of Medicine— did not hear the evidence in person, the Board must review the record so that it has the same information base as the ALJ, before disagreeing with the ALJ’s discipline recommendation.

In an informal hearing, by contrast, there are no disputed issues of fact. Consequently, there is no adversary hearing before an ALJ. Instead, the parties appear before the Board to argue regarding the level of discipline which should be imposed. At the informal hearing in this case, the administrative prosecutor presented a recommendation regarding the penalty' which should be imposed. That recommendation is emanating from a partisan — the prosecutor — not from an impartial ALJ. Coming, as it does, from an advocate, the prosecutor’s recommendation is not entitled to any special weight. For that reason, section 120.57(2) does not impose any special burden of justification if the Board wishes to disagree with the sanction proposed by the prosecutor.

The dissenting opinion analogizes the administrative prosecutor’s requested sanction to the sentencing guidelines in criminal law. Thé analogy does not hold. Many administrative agencies, including this one, have adopted administrative guidelines for discipline. Where that is so, those administrative guidelines may be viewed as being analogous to the statutory criminal sentencing guidelines.

However, in the criminal law there is no requirement for a court to articulate reasons for disagreeing with a prosecutor’s requested sentence, and trial judges regularly disagree with prosecutors’ sentencing requests. A departure reason is called for only if the statutory guidelines are departed from. See § 921.0016, Fla. Stat. (1997).

In sum, there are very good reasons why the Administrative Procedure Act treats differently the imposition of discipline in an informal hearing under section 120.57(2), as opposed to discipline after a formal hearing before an administrative law judge under section 120.57(1). I concur in affirming the judgment.

SCHWARTZ, Chief Judge,

dissenting.

The only thing in issue at what amounted to the appellant’s sentencing hearing after a guilty plea — which, by statutory definition, could “not [involve] disputed issues of material fact,” § 120.57(2), Fla. Stat. (1997) — was the penalty to be imposed for his admitted violations. It is therefore inconceivable to me that section 120.57(2)(a)3 can refer to anything but the Board’s ruling on that penalty. Conversely, the contrary view — that the “written explanation” the agency must file refers solely and instead to its reasons for overruling an objection to “evidence” presented at the hearing — is wholly unacceptable. Since it means that the legislature has, for the first time in recorded legal history, not only required a tribunal to file a post-hearing written explanation of an evidentiary ruling, but that it has done so in a context in which neither an “objection” nor formal “evidence” is likely even to exist, this construction renders the provision senseless, silly, or both. I thought we weren’t supposed to interpret statutes this way. Cooper v. Brickell Bayview Real Estate, Inc., 711 So.2d 258 (Fla. 3rd DCA 1998), and eases cited.

For these reasons, I believe that it was the Board’s statutory duty — minimal, but signifi-cantr-to provide some reasoned explanation for its departure from the agency’s recommendation as to the only question before.it. See Arias v. State Dep’t of Bus. & Prof'l Regulation, 710 So.2d 655 (Fla. 3d DCA 1998)(enforcing statutory requirements of standardized administrative penalties). As in the analogous case of the necessity for written reasons to support upward guideline departures, see State v. Colbert, 660 So.2d 701 (Fla.1995); Pierre v. State, 708 So.2d 1037 (Fla. 3d DCA 1998); Boynton v. State, 473 So.2d 703 (Fla. 4th DCA 1985), approved, 478 So.2d 351 (Fla.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986), I would therefore vacate that portion of the penalty imposed which is in excess of the agency’s recommendation. See also Lawrence v. Lawrence, 709 So.2d 192 (Fla. 3d DCA 1998)(vacating unequal equitable distribution for lack of written justification required by statute); Higgs v. Property Appraisal Adjustment Bd., 411 So.2d 307 (Fla. 3d DCA 1982)(reversing decision of Property Appraisal Board for failure to comply with statutory requirement to include written reasons for upholding or overturning appraiser’s determination); R.B.S. v. Capri, 384 So.2d 692 (Fla. 3d DCA 1980)(granting writ of ha-beas corpus for trial court’s disregard of statutory dictate to state findings and reasons for detention). 
      
      . (2) Additional procedures applicable to hearings not involving disputed issues of material fact. — In any case to which subsection (1) does not apply:
      (a) The agency shall:
      
        1. Give reasonable notice to affected persons of the action of the agency, whether proposed or already taken, or of its decision to refuse action, together with a summary of the factual, legal, and policy grounds therefor.
      2. Give parties or their counsel the option, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency ... or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction.
      § 120.57(2)(a)l,2, Fla. Stat. (1997).
     
      
      . 3. If the objections of the parties are overruled, provide a written explanation within 7 days.
      § 120.57(2)(a)3, Fla. Stat. (1997). ■
     
      
      . Applying the principle that when' statutory "words have both a popular and a technical meaning, regard should be had to other parts of the statute to determine whether or not the popular meaning was intended by the legislature,” 49 Fla.Jur.2d Statutes § 135. (1984), it seems clear that the term "written or oral evidence," as used in section 120.57(2)(a)2, Florida Statutes (1997), refers to the popular meaning of that word rather than to its technical or legal sense. See The American Heritage Dictionary (1979) ("evidence n. 1. The data on which a judgment or conclusion may be based, or by which proof or probability may be established: fossilized evidence of climatic change. 2. That which serves to indicate or suggest: His reaction was evidence of guilt. 3. Law. The documentary of verbal statements and the material objects admissible as testimony in a court of law.”).
     