Florida/Georgia Personal Injury & Workers Compensation

...Warner, Assistant Attorney General, West Palm Beach, for petitioner. Jeremy J. Kroll of Dutko & Kroll, P.A., Fort Lauderdale, for respondent. GERBER, J. The state charged the defendant with over one hundred counts of patient brokering in violation of section 817.505(1)(a), Florida Statutes (2016)....

...The circuit court, after considering the parties’ evidence and arguments, entered an order denying the state’s motion in limine. The state has now filed with this court a petition for a writ of certiorari, requesting this court to quash the circuit court’s order denying the state’s motion in limine, find that section 817.505 is a general intent crime, and preclude the defendant from asserting an “advice of counsel” defense at trial. As a matter of first impression, we hold that “advice of counsel” is not a defense to the general intent crime of patient brokering as provided in section 817.505(1)(a), Florida Statutes (2016)....

...The parties’ arguments on this petition; and 3. Our review. 1. Procedural History a. The Florida and Federal Statutes at Issue The state charged the defendant with over one hundred counts of patient brokering in violation of section 817.505(1)(a), Florida Statutes (2016). At that time, section 817.505(1)(a) provided: (1) It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage to or from a health care provider or health care facility[.] § 817.505(1)(a), Fla. Stat. (2016). 1 Section 817.505(3), Florida Statutes (2016), included a “safe harbor” providing that 817.505 shall not apply to certain enumerated practices. These exempt enumerated practices at that time included: Any discount, payment, waiver of payment, or payment practice not prohibited by 42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder. § 817.505(3)(a), Fla. Stat. (2016) (emphasis added). 2 1 The 2019 version of section 817.505(1)(a) also prohibits any person from offering or paying any “benefit” to induce the referral of patients or patronage to or from a health care provider or health care facility. § 817.505(1)(a), Fla. Stat. (2019). 2 The 2019 version of section 817.505(3)(a) now uses slightly different and more specific language. Section 817.505(3)(a) now provides that section 817.505 shall not apply to any discount, payment, waiver of payment, or payment practice “expressly authorized by 42 U.S.C. s. 1320a-7b(b)(3) or regulations adopted thereunder.” § 817.505(3)(a), Fla....

...The State’s Motion in Limine Upon information that the defendant would assert an “advice of counsel” defense, the state filed a motion in limine seeking to prohibit the defendant from asserting such a defense. The state’s motion argued that section 817.505(1)(a)’s prohibition on patient brokering is a general intent crime, not a specific intent crime, and “advice of counsel” is not a defense to a general intent crime....

...4th DCA 1999) (“misadvice of counsel” defense is not available for a general intent crime); Aversano v. State, 966 So. 2d 493, 495 (Fla. 4th DCA 2007) (“advice of counsel defense . . . applies only to a specific intent crime”). The state argued that section 817.505(1)(a) is a general intent crime based on the statute’s plain language, because the statute “does not require a heightened or particularized intent beyond the mere intent to commit the act itself.” Cf....

...Hence, we conclude that section 843.12 is a general, rather than a specific, 3 intent statute, for which the defense of ‘misadvice of counsel’ is not available.”). Further, the state contended, unlike other sections within chapter 817, section 817.505(1)(a) does not contain any “specific intent” words which might suggest the possibility of a heightened mens rea requirement. See § 817.03, Fla. Stat. (2016) (“with a fraudulent intent”); § 817.233, Fla. Stat. (2016) (“willfully and with intent to injure or defraud”); § 817.50(1), Fla. Stat....

...the rule of lenity. In short, unless there is a clear and purposeful statement in the statute or in the legislative history indicating that the Florida Legislature specifically intended to exclude an element of scienter from [section 817.505(1)(a)] then this Court must find that there is one. In furtherance of this argument, the defendant contended that because section 817.505(3)(a) refers to 42 U.S.C. section 1320a-7b(b), which expressly requires that its violation occur “knowingly and willfully,” the same mens rea requirement must be imputed into section 817.505(1)(a). Alternatively, the defendant argued, even if the Florida Legislature intended to exclude a mens rea requirement from section 817.505(1)(a), the United States Constitution’s Supremacy Clause causes 42 U.S.C. section 1320a-7b(b) to preempt section 817.505(1)(a), thereby imputing section 1320a-7b(b)’s mens rea requirement into section 817.505(1)(a). Under either theory, the defendant argued, requiring the state to prove a defendant’s mens rea for violating section 817.505(1)(a) protects against prosecution for negligent, mistaken, or inadvertent conduct, including good faith reliance on the advice of counsel. Thus, the defendant argued, advice of counsel is a defense to prosecution under section 817.505(1)(a). 4  d. The State’s Reply to the Defendant’s Response In reply to the defendant’s response, the state reiterated that because section 817.505(1)(a) “does not require a heightened or particularized intent beyond the mere intent to commit the act itself,” Franchi, 746 So. 2d at 1128, section 817.505(1)(a)’s prohibition on patient brokering is a general intent crime, not a specific intent crime. The state also added that even assuming section 817.505 imputed the “knowingly and willfully” mens rea from 42 U.S.C. section 1320a-7b(b), section 817.505 would still be a general intent crime....

...In the order, the circuit court began by recognizing that the “advice of counsel defense applies only to a specific intent crime.” Therefore, the circuit court reasoned, “to determine whether the advice-of-counsel defense is available to a defendant charged with violations of section 817.505, Florida Statutes, this Court must first determine whether Patient Brokering under [section 817.505] is a general or specific intent crime.” According to the circuit court, “Looking to the plain language of the statute, [section 817.505] does not require a heightened or particularized intent beyond the mere intent to commit the act itself. Therefore, on its face, [section 817.505] appears to be a general, rather than specific, intent statute.” The circuit court then turned to the defendant’s argument that under the United States Constitution’s Supremacy Clause, section 817.505 is preempted by 42 U.S.C....

...section 1320a-7b(b)’s requirement of a “knowingly and willfully” mens rea. Relying on the Fifth District’s opinion in State v. Rubio, 917 So. 2d 383 (Fla. 5th DCA 2005), as adopted by the Florida Supreme Court in State v. Rubio, 967 So. 2d 768 (Fla. 2007), the circuit court found that section 817.505 is not preempted by section 1320a-7b(b). Despite these two findings, the circuit court nevertheless concluded that section 817.505 was a specific intent statute for which the defendant 5 could assert an “advice of counsel” defense. In a section which the circuit court entitled “Incorporation by Reference,” the circuit court reasoned: Although not preempted by [42 U.S.C. section 1320a- 7b(b)], because the safe harbor provision of section 817.505(3)(a) explicitly exempts practices “not prohibited by 42 U.S.C. § 1320a-7b(b),” [section 817.505] effectively incorporates by reference [42 U.S.C....

...administrative rules made by federal administrative bodies, which provisions are in existence and in effect at the time the Legislature acts.” State v. Rodriquez, 365 So. 2d 157, 160 (Fla. 1978) (citing Freimuth v. State, 272 So. 2d 473 (Fla. 1972)). [Section 817.505], including [subsection (3)(a)] containing the safe harbor provision, was first enacted in 1996, while the modern version of [42 U.S.C. section 1320a-7b(b)] was first enacted in 1972. Congress amended [42 U.S.C. section 1320a-7b(b)] multiple times both before and after the enactment of the [section 817.505]. [The version of 42 U.S.C. section 1320a-7b(b)] in effect when the Legislature enacted [section 817.505] provided that whoever “knowingly and willfully” violated [42 U.S.C....

...Harden, 938 So. 2d 480, 491 (Fla. 2006)], (quoting United States v. Starks, 157 F.3d 833, 838 (11th Cir. 1998)). Thus, the “knowingly and willfully” mens rea element of [42 U.S.C. section 1320a-7b(b)] is incorporated by reference into [section 817.505]. Further, because [section 817.505] contains a “willfully and knowingly” mens rea as incorporated by reference, Patient Brokering is a specific intent crime. As such, a defendant may assert the advice of counsel defense when charged with violations of [section 817.505]. Based on the foregoing reasoning, the circuit court denied the state’s motion in limine. 6  2....

...The Parties’ Arguments on this Petition a. The State’s Arguments The state has now filed with this court a petition for a writ of certiorari, requesting this court to quash the circuit court’s order denying the state’s motion in limine, find that section 817.505 sets forth a general intent crime, and preclude the defendant from asserting an “advice of counsel” defense at trial. The state correctly cites its burden as having to show that the circuit court’s order departs from the es...

...See generally State v. Pettis, 520 So. 2d 250, 252-53 (Fla. 1988) (discussing a district court’s ability to consider state petitions for certiorari to review pretrial orders). According to the state, the circuit court’s order here meets that burden, because section 817.505 is a general intent crime, and allowing the defendant to present an “advice of counsel” defense to a general intent crime constitutes a departure from the essential requirements of the law for which the state would suffer irrepara...

...from the essential requirements of the law for the following reasons: First, the trial court conceded that the advice-of-counsel defense is precluded when applied to a general-intent crime. Second, the trial court conceded that the plain language of [section 817.505] explicitly demonstrates that it is in fact a general-intent crime....

...2 U.S.C. section 1320a-7b(b)] was a specific-intent crime despite the federal statute requiring only general intent, that the Florida Legislature’s limited incorporation of the federal statute as a safe-harbor provision in [section 817.505] entitled the trial court to rewrite the Florida statute and add the new element 7  of specific intent found in neither the state nor federal statute. The trial court found, without refe...

...reference” of the safe-harbor provision required that the state statute must mirror the federal statute in its entirety, regardless of the Legislature’s intent not to do so . . . . The trial court’s order directly conflicts with Rubio’s holding that [section 817.505] incorporated [section 1320a- 7b(b)] only as to the safe-harbor provision . . . . The trial court erroneously heightened the mens rea required for [section 817.505] by taking out of context a statement from Harden v....

...In order to constitute such a departure, “[t]here must be a violation of a clearly established principle of law resulting in a miscarriage of justice” Belvin v. State, 922 So. 2d 1046, 1048 (Fla. 4th DCA 2006). There is no case law in the State of Florida that interprets [section 817.505(3)(a)] as it relates to the inclusion of the exemptions, exceptions, intent requirements and regulatory exceptions to [42 U.S.C. section 1320a-7b(b)]. The Fifth District Court opinion in Rubio merely held that [section 817.505] is not unconstitutional for the failure to contain an explicit 8 willfulness provision. That holding explicitly references the existence of [section 817.505(3)(a)] as the court’s reason that the statute is constitutional. Nothing about that holding is inconsistent with the trial court's order. The plain language of [section 817.505(3)(a)] actually conveys that any practice or conduct not prohibited under [42 U.S.C. section 1320a-7b(b)] shall not constitute a violation of [section 817.505]. [Section 817.505(3)(a)] incorporates by reference [all of 42 U.S.C. section 1320a-7b(b)] that was effective in 1996, including regulatory exceptions and the portions of the statute that create the knowing and willful mens rea standard. The plain language of [42 U.S.C. section 1320a-7b(b)] suggests [section] 817.505 is inapplicable to any conduct not criminalized by [42 U.S.C. section 1320a-7b(b)], which naturally and logically incorporates the federal scienter into [section 817.505]. Further, the rule of lenity requires [section 817.505] to be construed in the light most favorable to the accused, militating towards the inclusion of the specific intent language in [section 817.505]....

...section 1320a-7b(b)] is not a general intent statute. First, as the trial court’s order clarifies, the Legislature may adopt provisions of federal statutes and, when it does so, it is the provisions in existence and in effect at the time the Legislature acts that are adopted. When [section 817.505] was enacted in 1996, [42 U.S.C. section 1320a-7b(h)] did not exist and, to this day, [section 817.505(3)(a)] does not include this provision by reference. Thus, [42 U.S.C....

...2d at 252-53. We need only briefly address the state’s burden to show irreparable harm, as the state has easily met that burden. At this juncture, it appears the state is not disputing the defendant’s allegation that he relied on the advice of counsel in taking the actions which constitute his alleged violations of section 817.505(1)(a)....

...e irreparable. Therefore, our focus is on the state’s burden to show that the circuit court’s order departs from the essential requirements of the law. The state has met that burden as well. We reach that conclusion for three reasons. a. Section 817.505 does not incorporate section 1320a-7b(b) in its entirety. First, no authority exists for the circuit court’s finding that section 817.505 “effectively incorporates by reference” 42 U.S.C. section 1320a- 7b(b) in its entirety, including section 1320a-7b(b)’s inclusion of the “knowingly and willfully” mens rea. Instead, section 817.505(3)’s plain language, providing that section 817.505 shall not apply to certain enumerated practices, merely includes in these exempt enumerated practices “[a]ny discount, payment, waiver of payment, or payment practice not prohibited by 42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder.” § 817.505(3)(a), Fla....

...(2016). The antecedent phrase “[a]ny discount, payment, waiver of payment, or payment practice not prohibited by” cannot be judicially disconnected from the consequent phrase “42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder.” 10  Thus, taken in context, section 817.505(3)(a)’s reference to section 1320a-7b(b) at best incorporates only section 1320a-7b(b)’s exempt enumerated practices, as contained in section 1320a-7b(b)(3). See Rubio, 917 So. 2d at 396 (section 817.505’s prohibition against patient brokering “is not limited to situations involving Medicaid or federal programs”). b....

...The Circuit Court’s reliance on State v. Harden was misplaced. Second, the circuit court’s reliance on Harden, 938 So. 2d at 491, for the proposition that section 1320a-7b(b)’s “knowingly and willfully” mens rea can be incorporated into section 817.505, to require proof that “the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful,” was misplaced. In Harden, our supreme court held that the anti-kickback provis...

...A second intertwined reason for the supreme court’s holding that section 409.920(2)(e) was unconstitutional was because section 409.920(2)(e) contained no “safe harbor” exemptions. Id. at 492. However, in this case, unlike section 409.920(2)(e), section 817.505(3)(a) contains “safe harbor” exemptions. That difference became significant when our supreme court, in State v. Rubio, 967 So. 2d at 776, was faced with the argument that section 817.505 also is unconstitutional because it likewise fails to impose a “willfulness” mens rea requirement. The supreme court, contrary to its holding in Harden, adopted in Rubio the Fifth District’s reasoning that section 817.505 remains constitutional because, unlike section 409.920(2)(e) which lacked any “safe harbor” exemptions, “[s]ection 817.505(3)(a) specifically provides that the statute does not apply to any payment practice not prohibited by 42 U.S.C....

...willfully” mens rea to require proof that the defendant “acted with knowledge that his conduct was unlawful,” i.e., with specific intent, Rubio suggests that such a definition cannot be incorporated into section 11 817.505 due to the “safe harbor” distinction between sections 490.920(2)(e) and 817.505(3)(a). Further, because Harden was decided in 2006, our supreme court did not discuss the import of Congress’s later enactment of 42 U.S.C....

...Instead, the Government must prove that the defendant willfully committed an act that violated the Anti–Kickback Statute.”). c. “Knowingly and Willingly” does not equate to specific intent. Third, even if the “knowingly and willingly” mens rea is somehow imputed into section 817.505(1)(a) by operation of law as the defendant argues, such an incorporation would not transform a violation of section 817.505(1)(a) from a general intent crime into a specific intent crime. We reach this conclusion based on our supreme court’s opinion in Frey v....

...4th DCA 13 1999) (aiding escape is a general intent crime); Olenchak v. State, 183 So. 3d 1227, 1229 (Fla. 4th DCA 2016) (sexual battery is a general intent crime). We rely on Frey again here to conclude that patient brokering in violation of section 817.505 is a general intent crime. Even if we were to assume that the “knowingly and willingly” mens rea is somehow incorporated into section 817.505(1)(a), the statute’s plain language reveals that no heightened or particularized, i.e., no specific, intent is required for the commission of this crime. See Frey, 708 So. 2d at 920; Franchi, 746 So. 2d at 1128. Conclusion Having concluded that section 817.505(1)(a)’s prohibition on patient brokering is a general intent crime, not a specific intent crime, we further conclude that the defendant cannot assert “advice of counsel” as a defense here....

...circuit court’s order denying the state’s motion in limine. We direct the circuit court, on remand, to enter an order granting the state’s motion in limine on the basis that “advice of counsel” is not a defense to the general intent crime of patient brokering as provided in section 817.505(1)(a), Florida Statutes (2016). Petition granted with instructions. MAY and KUNTZ, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing....