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State v. Kigar

Florida Court of Appeals, Fourth District

August 7, 2019

STATE OF FLORIDA, Petitioner,
v.
JAMES FRANCIS KIGAR, Respondent.

         Not final until disposition of timely filed motion for rehearing.

          Petition for writ of certiorari to the Fifteenth Judicial Circuit, Palm Beach County; Laura Johnson, Judge; L.T. Case No. 502016CF010364AMB.

          Ashley Moody, Attorney General, Tallahassee, and Lindsay A. 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). 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 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). Therefore, we grant the state's petition.

         We present this opinion in three parts:

1. The procedural history;
2. 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]

         At the time of the alleged offenses, 42 U.S.C. section 1320a-7b(b)(2) (2016) provided, in pertinent part:

(2) Whoever knowingly and willfully offers or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person-
(A) to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program . . .shall be guilty of a felony . . . .

(emphasis added).

         Section 1320a-7b(b)(3) further provided that paragraph (2) shall not apply to certain enumerated practices, none of which are relevant here.

         b. 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. See State v. Franchi, 746 So.2d 1126, 1128 (Fla. 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. Franchi, 746 So.2d at 1128 ("The plain language of [section 843.12] does not require a heightened or particularized intent beyond the mere intent to commit the act itself or the intent to cause the natural and necessary consequences of the act, i.e., to 'knowingly' act. Hence, we conclude that section 843.12 is a general, rather than a specific, 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"); § ...


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