Practicing Medicine without a License

What happens if you received a cease and desist letter along with a uniform unlicensed activity citation for the practicing, offering to practice or attempting to practice medicine without an actual, valid license or permit in violation of Florida Statute Section 456.065 and 458.327(1)(a)?

Florida law provides for three types of actions can be triggered by an allegation that a person:

1. the issuance of a uniform unlicensed activity citation signed by a Florida Department of Health (DOH) Representative;
2. a criminal prosecution for the violation of Florida Statute Section 456.065(2)(d)(1)-(3); or
3. the issuance of a notice to cease and desist letter for practicing a health care profession without an active, valid license to practice that profession;

In many of these cases, DOH investigators act in an undercover capacity during sting operations to entrap individuals into doing something or even offering to do something that requires a medical license. In other cases, a defense arises because the service offered does not constitute practicing medicine and does not require a medical license.

Attorneys for the Unlicensed Practice of Medicine in Tampa, FL

The attorneys at Sammis Law Firm represent clients accused of the unlicensed practice of medicine in Tampa, FL, and the surrounding areas in the greater Tampa Bay Area. We can help you dispute the unlicensed activity citation during an administrative proceeding and/or defend you against a criminal accusation prosecuted as a felony or misdemeanor in court.

We also help clients accused of engaging in the unlicensed practice of dentistry, psychology, and message therapy. By addressing the administrative action appropriately, you can often gather enough information to show the State Attorney’s Office all of the reasons why no criminal case should be initiated.

Call 813-250-0500.

Sting Operations by Investigators with the Department of Health

The Florida Department of Health’s (DOH) Unlicensed Activity Program works with various professional licensing boards including the Board of Medicine, the Board of Psychology, and the Board of Dentistry. The DOH program for unlicensed activities investigates and prosecutes unlicensed activity in Florida.

The DOH uses a dedicated trust fund to combat unlicensed activity in this state as created by Florida Section 456.065(3), Florida Statutes, which imposes a $5.00 fee on all health practitioners upon initial licensure and each licensure renewal. Complaints of unlicensed activity involve message establishments and unlicensed massage therapists, teeth whitening services; and cosmetic surgery for implants or Botox.

For the field of psychology, complaints often revolve around a person with degrees or licenses from unaccredited online schools, Christian counselors, or life coaches. The most common penalties for unlicenced activities include arrest by law enforcement, fines, and the issuance of a cease and desist order.

Issuance of an Unlicensed Activity Citation

If you received a uniform unlicensed activity citation for the practicing, offering to practice or attempting to practice medicine without an actual, valid license or permit in violation of Florida Statute Section 456.065 and 458.327(1)(a), then contact an experienced defense attorney at Sammis Law Firm.

Our attorneys understand the requirements in the health care industry, including the fine line between practicing medicine and performing other services.

Pursuant to Section 456.065, F.S., investigators for the Florida Department of Health issue uniform unlicensed activity citations (INV Form 616U) if the DOH Representative certifies having probable cause to believe that a person violates either F.S. 458.327(1)(a) or 456.065(2)(d), by committing the offense of offering to practice, attempting to practice, or practicing as a medical doctor without an active valid Florida license to practice that professions.

Florida Statute Section 456.065(2)(b) provides:

In addition to the remedies under paragraph (a), the department may impose by citation an administrative penalty not to exceed $5,000 per incident.

The citation shall be issued to the subject and shall contain the subject’s name and any other information the department determines to be necessary to identify the subject, a brief factual statement, the sections of the law allegedly violated, and the penalty imposed.

If the subject does not dispute the matter in the citation with the department within 30 days after the citation is served, the citation shall become a final order of the department….

The department shall be entitled to recover the costs of investigation and prosecution in addition to the fine levied pursuant to the citation. Service of a citation may be made by personal service or by mail to the subject at the subject’s last known address or place of practice.

To dispute the citation, you can retain an attorney to file an appropriate petition with the Agency Clerk. The petition to contest the citation for practicing or offering to commit medicine without a license must be filed in conformance with the Florida Administrative Code Rules 28-106.201 or 28-106.301.

Sample Petition FAC Rules 28-106.201 or 28-106.301

Petition Disputing a Uniform Unlicensed Activity Citation

Comes now, [Name of Petitioner] (hereinafter “Petitioner), pursuant to Florida Administrative Code (FAC) Rules 28-106.201, and files this written petition for the initiation of a proceeding in this written petition to the Department of Health or the agency responsible for rendering the final agency action. [The lines of the petition must be double-spaced].

Because of the existence of a disputed issue of material fact, Petitioner shows that this petition disputing a uniform unlicensed activity should be granted in order to initiate an evidentiary proceeding and that the agency refers the matter to the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct the hearing.

I. Fact in Support of the Initiation of a Proceeding

In support of this Petition, the Petitioner shows:

1. The name and address of each agency affected and each agency’s file or identification number are listed as follows: _________.
2. The name, address, any e-mail address, any facsimile number, and telephone number of the petitioner is listed as follows: ______________.
3. The name, address, and telephone number of the petitioner’s attorney, which shall be the address for service purposes during the course of the proceeding is listed as follows: ______________.
4. An explanation of how the petitioner’s substantial interests will be affected by the agency determination include: _______________________.
5. The petitioner received notice of the agency decision in the following manner: On [date], [person] served a [type of notice] to [petitioner] by [action taken](attached as Exhibit “A”).

II. Disputed Issues of Material Fact

1. The disputed issues of material fact are listed as follows:

1. 1. Petitioner disputes that he/she practiced, attempted to practice, or offered to practice a health care profession without an active, valid Florida license to practice that profession.
   2. Petitioner disputed that he/she held himself/herself out as able to practice a health care profession or as able to provide services that require a health care license in any way that could be deemed to be an attempt or offer to practice such profession without a license.
   3. Petitioner did not perform or offer to perform any act that constitutes the practice of medicine or requires a license or permit as a medical doctor.
   4. The act of _____ or the offer to perform that act does not constitute the practice of medicine or require a license or permit as a medical doctor.
   5. Petitioner disputes that….
2. The concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action include:_______.
3. The statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency’s proposed action include: _____.
4. An explanation of how the alleged facts relate to the specific rules or statutes includes: _______.
5. The relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the agency’s proposed action, incudes: _________.

II. Relief Requested

Wherefore, Petitioner shows that since the petition involves disputed issues of material fact, the agency is required to grant the petition and refer the matter to the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct the hearing.

Petitioner also shows that the request that an administrative law judge be assigned to conduct the hearing must be accompanied by a copy of this petition and a copy of the notice of agency action.

Certificate of Service

I certify that I did cause this petition to be and its exhibits to be served on the Agency Clerk, Department of Health, 4052 Bald Cypress Way, BIN#A-02, Tallahassee, FL, 32399-1703 by the U.S. Postal Service by Certified Mail Return Receipt Requested and by facsimile to 850-413-8743.

Florida Administrative Code Rules 28-106.201

Florida Administrative Code (FAC) Rules 28-106.201, for initiation of proceedings, provides:

(1) Unless otherwise provided by statute, and except for agency enforcement and disciplinary actions that shall be initiated under Rule 28-106.2015, F.A.C., initiation of proceedings shall be made by written petition to the agency responsible for rendering final agency action. The term “petition” includes any document that requests an evidentiary proceeding and asserts the existence of a disputed issue of material fact. Each petition shall be legible and on 8 1/2 by 11 inch white paper. Unless printed, the impression shall be on one side of the paper only and lines shall be double-spaced.

(2) All petitions filed under these rules shall contain:

(a) The name and address of each agency affected and each agency’s file or identification number, if known;

(b) The name, address, any e-mail address, any facsimile number, and telephone number of the petitioner, if the petitioner is not represented by an attorney or a qualified representative; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests will be affected by the agency determination;

(c) A statement of when and how the petitioner received notice of the agency decision;

(d) A statement of all disputed issues of material fact. If there are none, the petition must so indicate;

(e) A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action;

(f) A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and

(g) A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the agency’s proposed action.

(3) Upon receipt of a petition involving disputed issues of material fact, the agency shall grant or deny the petition, and if granted shall, unless otherwise provided by law, refer the matter to the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct the hearing. The request shall be accompanied by a copy of the petition and a copy of the notice of agency action.

Criminal Prosecutions for Practicing Medicine without a License

Florida Statute Section 458.327(1)(a) provides:

458.327 Penalty for violations.—

(1) Each of the following acts constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:

(a) The practice of medicine or an attempt to practice medicine without a license to practice in Florida.

Under Florida Statute Section 456.065(2)(d)(3), the first-degree misdemeanor version of the offense can be charged for practicing attempting to practice or offering to practice a health care profession with an inactive or delinquent license for any period of time up to 12 months. However, practicing, attempting to practice, or offering to practice a health care profession when that person’s license has been inactive or delinquent for a period of time of 12 months or more shall be a felony of the third degree. The minimum penalty for violating this subparagraph shall be a term of imprisonment of 30 days and a fine of $500.

Under Florida Statute Section 456.065(2)(d)(1), it is a felony of the third degree to practice, attempt to practice, or offer to practice a health care profession without an active, valid Florida license to practice that profession….Holding oneself out, regardless of the means of communication, as able to practice a health care profession or as able to provide services that require a health care license shall be deemed to be an attempt or offer to practice such profession without a license. The minimum penalty for violating this subparagraph shall be a fine of $1,000 and a minimum mandatory period of incarceration of 1 year.

The penalties for the second-degree felony version of the unlicensed practice of medicine is found at Florida Statute Section 456.065(2)(d)(1) is the defendant is convicted of practicing a health care profession without an active, valid Florida license to practice that profession when such practice results in serious bodily injury. The minimum penalty for violating this subparagraph shall be a fine of $1,000 and a minimum mandatory period of incarceration of 1 year.
For purposes of Florida Statute Section 456.065(2)(d)(2), the term “serious bodily injury” includes:

• disfigurement;
• brain or spinal damage;
• fracture or dislocation of bones or joints;
• limitation of neurological, physical, or sensory function;
• any condition that required subsequent surgical repair; or
• death.

This article was last updated on Monday, February 10, 2020.