Gustavo B. Borges, D.D.S., Appellant, vs. Department of Health, Appellee.
No. 3D13-1529
Third District Court of Appeal State of Florida
August 13, 2014
Lower Tribunal Nos. 07-35238, DOAH 12-0005PL
Schochet Law Group, and Randall M. Schochet (Greenacres), for appellant.
Therese A. Savona, Chief Appellate Counsel (Tallahassee), for appellee.
Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
OPINION
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
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
A recommended order by an administrative law judge must contain “findings of fact, conclusions of law, and recommended disposition.”
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
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.
