      Third District Court of Appeal
                              State of Florida

                          Opinion filed April 24, 2019.
        Not final until disposition of timely filed motion for rehearing.

                              ________________

                              No. 3D18-633
                 Lower Tribunal Nos. 12-14499, ME0013780
                            ________________


                           George M. Safirstein,
                                   Appellant,

                                       vs.

              Department of Health, Board of Medicine,
                                   Appellee.


     An Appeal from the Department of Health, Board of Medicine.

     Sanchez-Medina, Gonzalez, Quesada, Lage, Gomez & Machado LLP, and
Roland Sanchez-Medina, Jr., for appellant.

     Christine E. Lamia, Chief Appellate Counsel (Tallahassee), for appellee.


Before SALTER, LINDSEY, and HENDON, JJ.

     HENDON, J.
         Dr. George M. Safirstein (“Safirstein”) appeals the decision of the

Department of Health Board of Medicine1 (“Board”) to revoke his license to

practice medicine in Florida. We affirm.

         Safirstein was a licensed physician in Florida, practicing at Synergy

Integrative Health and Med Spa / Optimal Health Age Management Centers in

Hallandale Beach, Florida. Safirstein was administratively charged with medical

malpractice in a twenty-one count complaint filed by the Board.                 The

administrative complaint addressed Safirstein’s treatment of seven patients over

the course of two years, and recites twenty-one counts alleging that Safirstein

failed to meet the prevailing standard of care in his treatment of these patients,

failed    to   perform   necessary   physical   examinations   on   these   patients,

inappropriately prescribed controlled substances to these patients, and failed to

maintain complete and legible medical records justifying the course of treatment

for these patients. Subsequent to a finding of probable cause, Safirstein returned

an election of rights form in which he did not dispute the material allegations

contained in the administrative complaint. He elected to move forward with an

informal hearing which would allow him to present mitigating factors to the Board.




1The Board is the state agency charged with regulating the practice of medicine
pursuant to section 20.43, Florida Statutes, Chapter 455, Florida Statutes, and
Chapter 458, Florida Statutes.

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The election was also signed by his attorney, Mr. Medina, who had been actively

representing him in the underlying investigation.

      The informal hearing was scheduled for Friday, February 2, 2018, and

Safirstein does not dispute that he received notice of the hearing. On Monday,

January 29, 2019, four days prior to the hearing, Safirstein’s attorney emailed the

Board enquiring about obtaining a continuance based on Safirstein’s health, but

provided no details. The following morning, the Board’s Administrator responded,

and asked that Safirstein file a formal request for continuance or a waiver of

appearance, and suggested sending documentation from Safirstein’s physician

indicating why Safirstein could not travel from Hallandale Beach to Orlando for

the hearing.

      On Thursday afternoon, the day before the scheduled hearing, Mr. Medina

made a formal request via email for a continuance of the hearing. He again stated

that Safirstein was not feeling well and had been advised not to travel. Mr. Medina

offered to submit a letter from Safirstein’s physician, if requested. Later that

evening, the Administrator responded to Mr. Medina that the Chair had denied the

request for continuance because it was untimely filed.

      The Board met at the scheduled time the following day. Safirstein was not

present, and Mr. Medina did not attend the hearing on Safirstein’s behalf. The

Board members noted that Safirstein’s request for continuance was untimely filed



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and did not explain his ill health; and one member questioned why Safirstein’s

attorney did not attend on his behalf. Ultimately, the Board decided to move

forward on the allegations because it was an informal hearing at which Safirstein’s

presence was not required, Safirstein had admitted to the factual allegations of the

complaint (characterized as “egregious”), any facts in mitigation would not alter

the outcome, and neither Safirstein nor his attorney had timely provided any

medical reasons for his failure to attend. The Board unanimously found Safirstein

in violation of the statutes cited in the complaint,2 and revoked Safirstein’s license

to practice medicine in Florida.

      On appeal, Safirstein argues that the Board abused its discretion by denying

his request for a continuance of the hearing based on his assertion of ill health. He

contends that had the hearing been reset, he could have presented mitigating

factors at the reset hearing.

      Our standard of review of an agency’s interpretation of a statute is de novo.

Amend. VI, Art. V, § 21, Fla. Const. (declaring that appellate courts may no longer


2 Section 458.331(1)(t), Fla. Stat. (2012) (subjecting a licensee to discipline for
committing medical malpractice as defined in section 456.50, Fla. Stat.); section
458.331(1)(q), Fla. Stat. (2012) (subjecting a licensee to discipline for prescribing,
dispensing, administering, mixing, or otherwise preparing a legend drug, including
any controlled substance, other than in the course of the physician's professional
practice); Section 458.331(1)(m), Fla. Stat. (2012) (subjecting a licensee to
discipline for failing to keep legible medical records, including, but not limited to,
patient histories; examination results; test results; records of drugs prescribed,
dispensed, or administered; and reports of consultations and hospitalizations, etc.).

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defer to an agency's statutory interpretation, and must instead apply a de novo

review).   The standard of review of the agency's findings of fact is that of

“competent, substantial evidence.” § 120.68(7)(b), Fla. Stat. (2012); see also De

Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).

      This was a non-evidentiary, informal hearing. Safirstein’s answer admitted

to the facts alleged in the twenty-one count complaint; neither the record on appeal

nor the initial brief explain or specify what the “other mitigating factors” might be

that could have altered the outcome of the administrative hearing. Further, Rule

28-106.210, Florida Administrative Code, provides that a continuance may be

granted for good cause shown, and such requests must be made at least five days

prior to the date of the scheduled hearing, except in cases of emergency.

Safirstein’s attorney’s formal request for a continuance was untimely made one

day prior to the noticed hearing; and there was no indication from Mr. Medina that

Safirstein’s health problem was an emergency that would justify a continuance.

Counsel is presumed to know the applicable procedural rules.

      The record on appeal contains competent, substantial evidence upon which

the Board properly relied to find the offenses “egregious” and the sanction of

revocation appropriate. See § 120.68(7)(b), Fla. Stat. (2012). Further, we find no

abuse of discretion in the Board’s decision to deny Safirstein’s motion for

continuance, and to proceed with the hearing and render its decision. See Kale v.



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Dep't of Health, 175 So. 3d 815, 817 (Fla. 1st DCA 2015) (“A board's imposition

of a penalty . . . is reviewed for an abuse of discretion.”); Gonzalez-Gomez v.

Dep't of Health, 107 So. 3d 1139, 1141 (Fla. 3d DCA 2012); § 120.68(7)(e), Fla.

Stat. (2012) (requiring an agency's exercise of discretion to be consistent with its

rules). We therefore affirm the Board’s final order.

       Affirmed.




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