STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF )

CHIROPRACTIC EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1798

) License No. 1454

STANLEY TURNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a public hearing was held in this cause February 22 and 23, 1977, in the Board of County Commissioners Room, Old Court House, Titusville, Florida, beginning at 10:00 a.m.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

101 East College Avenue Tallahassee, Florida

For Respondent: Charles F. Broome, Esquire

Post Office Box 729 Titusville, Florida 32780

ISSUE

Whether the license, No. 1454, issued to licensee should be revoked, annulled, withdrawn or suspended.

FINDINGS OF FACT

1. The Florida State Board of Chiropractic Examiners filed an Administrative Complaint against licensee Stanley Turner, D.C., who holds license number 1454. Count I alleged Respondent made sexual advances toward four patients. Count II alleged that Respondent made improper sexual advances toward employees. Count III alleged that Respondent has been addicted to the habitual use of narcotics, stimulants, or other habit-forming drugs since July 1, 1975. Count IV alleged that Respondent made improper sexual advances on a patient under the guise of necessary chiropractic treatment. Count V alleged that Respondent offered and administered medicines and drugs to two patients. Count VI was dropped at the hearing. Count VII was dropped at the hearing. Count VIII alleged that the foregoing Counts constitutes unprofessional conduct. Respondent denied each of the allegations of the Petitioner.

   
   

2. The testimony of the various women who testified against Dr. Turner, together with the testimony of the women who testified for Dr. Turner, does not establish the fact that "improper sexual advances" were actually made by the

   Respondent, Dr. Turner. The nature of the practice of acupuncture and of the practice of chiropractic is such that the procedures themselves could be misleading as to the intent of the practitioner.

   
   

3. Testimony of six medical doctors and two dentists that they had filled prescriptions for the Respondent, Dr. Turner, which prescriptions were for various drugs, Valium, Darvocet, Milhouse, Percodan, Tylenol, Robaxin, was coupled with their testimony that they issued these drugs through "professional courtesy" without ordinary examinations of the patient and that in fact Dr. Turner did suffer from a variety of ills including a back injury, an accident with a horse, and "hangovers." The evidence submitted does not establish that the Respondent took all of these drugs himself or was addicted to the habitual use of narcotics, stimulants or the habit-forming drugs. It does establish that drugs were secured by Dr. Turner in a manner and amount that could be and perhaps was embarrassing to those doctors who wrote the prescriptions for Respondent.

   
   

4. The evidence does not support a finding that drugs were offered or administered to patients and employees and other persons.

   
   

5. The testimony does establish that the Respondent was guilty of unacceptable conduct inasmuch as the testimony as a whole establishes the fact that Dr. Turner did take advantage of the medical community in requesting prescriptions and that his conduct toward his clients and employees was casual and at times undignified.

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 460.13, Record of certificates; grounds for suspension and revocation of certificates; procedure.-, Florida Statutes, provides:

(3) The board, pursuant to the procedure prescribed in this act, shall have the authority to discipline any applicant for license, or the holder of the license to practice as a chiropractic physician, who is found guilty by the board of one or more of the following:

* * *

(b) That the holder thereof no longer pos- sesses a good moral character;

* * *

(h) That he is in any way guilty of any deception, misrepresentation, or fraud in the practice of chiropractic;

* * *

(m) That he is guilty of unprofessional con- duct which is defined to mean: Any conduct which is reasonably likely to deceive or de- fraud the public; sharing office space with any person illegally practicing any of the healing arts; the employing either directly or indirectly of any unlicensed chiropractic physician whose license has been suspended; or the violation of the code of ethics or any provisions thereof adopted by the board.

The evidence does not support that the Respondent in fact did make "improper sexual advances" to employees or patients contrary to the foregoing statute. The evidence does not support the allegation that the Respondent practiced deception, misrepresentation or fraud in the practice of chiropractic. The

evidence does not establish that the Respondent offered or administered medicine or drugs to patients in violation of the foregoing statute. The evidence does not establish that the Respondent was guilty of unprofessional conduct as defined in the foregoing statute. The evidence does establish that the Respondent, Dr. Turner, took advantage of his position as a chiropractic physician and requested prescriptions for various pain killing drugs from the medical community which is short of the standard of conduct expected of a professional. This conduct, however, is insufficient to revoke, annul or suspend the license of Respondent.

RECOMMENDATION

Give Respondent Stanley Turner a public reprimand then dismiss the complaint.

DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302

Charles F. Broome, Esquire Post Office Box 729 Titusville, Florida 32780

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS

In re: The Revocation or suspension of the license of:

Stanley Turner, D.C. DOAH CASE NO. 76-1798 License No. 1454

/

FINAL ORDER

THIS CAUSE came on for hearing before the Florida State Board of Chiropractic Examiners, on May 7, 1977, at the Sheraton Olympic Villas, 6700 Sand Lake Road, Orlando, Florida for issuance of a Final Order upon consideration of the Recommended Order issued by a Hearing Officer of the Division of Administrative Hearings and Exceptions to the Recommended Order filed by Ronald C. LaFace, Esquire, Special Prosecutor for the Board.

The Board was represented by Ronald C. LaFace, Esquire, Special Prosecutor, Post Office Box 1752, Tallahassee, Florida, and the Respondent was present and represented by Gary Large, Esquire, Law Offices of Charles F. Broome, Post Office Box 729, Titusville, Florida.

The Board authorized issuance of its Administrative Complaint on September 16, 1976, charging the Respondent with violations of Sections 460.13(3)(b)(e)(i)(m) and (n), Florida Statutes. Pursuant to Section 120.57(1), Florida Statutes, formal proceedings were conducted on February 22 and 23, 1977, in the Board of County Commissioners Room, Old Courthouse, Titusville, Florida, before Delphene Strickland, Hearing Officer, Division of Administrative Hearings, who issued her Recommended Order on April 7, 1977. (attached hereto and incorporated herein as Exhibit A). At the formal proceedings, the Board was represented by Special Prosecutor Ronald C. LaFace and the Respondent was represented by Charles F. Broome, Esquire.

On April 8, 1977, Special Prosecutor LaFace filed his Exceptions to the Recommended Order. (attached hereto and incorporated herein as Exhibit B). Paragraph 1 of the Exceptions asserts that the Hearing Officer totally ignored testimony of a former employee of Respondent, Anna Maxine Pope, as to the sexual advances of Respondent (T.pp 68, 69 and 73), and that this course of conduct was corroborated by witness Donna Holley, who testified as to occurrences during the two weeks she was Respondent's employee (T. pp 152-155). The Board hereby finds and determines that the assertions in Paragraph 1 of the Exceptions are without merit.

Paragraph 2 of the Exceptions asserts that the Hearing Officer ignored the quantities of the narcotic drugs obtained by Respondent and the different reasons given to the various doctors, some of them on the same day as to his need for the prescription drugs. This exception relates Paragraph 3 of the Findings of Facts contained in the Recommended Order. The Board hereby finds and determines that the assertions in Paragraph 2 of the Exceptions have merit. However, it is the view of the Board that those findings contained in Paragraph

3 of the Recommended Order are supported by substantial competent evidence, but that the testimony referred to by the Hearing Officer also constitutes substantial competent evidence of an additional finding to be added to and modifying Paragraph 3 of the recommended findings of fact, stating that the evidence establishes that Respondent obtained these drugs for himself or others, under false pretenses.

Paragraph 3 of the Exceptions asserts that the Hearing Officer erred in not considering the testimony of Joann Jennings as to the offer to her by Respondent of drugs (T. p.117), which testimony was corroborated by witness Holley (T. pp 152-155). The Board hereby finds and determines that the assertions in Paragraph 3 of the Exceptions have merit. This exception relates to the findings contained in Paragraph 4 of the recommended findings of fact and it is

the Board's determination that the record does not contain substantial competent evidence negating the testimony of witnesses Jennings and Holley and that there is substantial competent evidence supporting a finding contrary to that of the Hearing Officer in Paragraph 4 of the recommended findings of fact.

Paragraph 4 of the Exceptions asserts that the Hearing Officer erred in refusing to admit into evidence the Order of the Board of Chiropractic Examiners entered on August 28, 1972, revoking the license of the Respondent. The Board hereby determines and finds that the assertions in Paragraph 4 of the Exceptions have merit. It is the Board's conclusion that, after it has made its findings of fact and conclusions of law, it may properly consider matters contained in its official records, which are material to taking disciplinary action appropriate to the protection of the public. The Board further concludes that where a previous order of the Board is offered into evidence for the purpose of making it a part of the record of the formal proceedings, the Hearing Officer erred in not admitting it. Therefore, the Board hereby recognizes the materiality of its previous order (attached hereto and incorporated herein as Exhibit C), and makes it a part of the record of these proceedings.

Paragraph 5 of the Exceptions is directed to the Hearing Officer's recommended conclusions of law and recommended penalty and asserts that the Hearing Officer erred in concluding that Respondent did not violate 460.13, F.S., and that her recommendation is inconsistent in that it recommends a dismissal of the Administrative Complaint while also recommending the penalty of public reprimand. The Board hereby determines and finds that Paragraph 5 of the Exceptions has merit. Pursuant to Section 120.57(1)(b)(9), F.S., the Board is lawfully entitled to modify or reject the conclusions of law of the Hearing Officer and make its own conclusions of law, as set forth below. Further, the Board finds that it cannot accept the Hearing Officer's Recommended penalty because dismissal of the Administrative Complaint would have the effect of preventing the Board from imposing any penalty, including public reprimand.

The Board, and each member thereof, having reviewed the complete record of the formal proceedings, having considered the Recommended Order and the Exceptions thereto, having heard argument of Counsel, and being otherwise advised in the premises hereby issues its Final Order:

FINDINGS OF FACT

1. The Florida State Board of Chiropractic Examiners filed an Administrative Complaint against licensee Stanley Turner, D.C., who holds license number 1454. Count I alleged Respondent made sexual advances toward four patients. Count II alleged that Respondent made improper sexual advances toward employees. Count III alleged that Respondent has been addicted to the habitual use of narcotics, stimulants, or other habit forming drugs since July 1, 1975. Count IV alleged that Respondent made improper sexual advances on a patient under the guise of necessary chiropractic treatment. Count V alleged that Respondent offered and administered medicines and drugs to two patients. Count VI was dropped at the hearing. Count VII was dropped at the hearing. Count VIII alleged that the foregoing Counts constitutes unprofessional conduct. Respondent denied each of the allegations of the Petitioner.

   
   

2. The testimony of the various women who testified against Dr. Turner, together with the testimony of the women who testified for Dr. Turner, does not establish the fact that "improper sexual advances" were actually made by the Respondent Dr. Turner.

3. Testimony of six medical doctors and two dentists that they had filled prescriptions for the Respondent, Dr. Turner, which prescriptions were for various drugs, Valium, Darvocet, Milhouse, Percodan, Tylenol, Robaxin, was coupled with their testimony that they issued these drugs through "professional courtesy" without ordinary examinations of the patient and that in fact Dr. Turner did suffer from a variety of ills including a back injury, an accident with a horse, and "hangovers." The evidence submitted does not establish that the Respondent took all of these drugs himself or was addicted to the habitual use of narcotics, stimulants or the habit-forming drugs. However, it does establish that he obtained these drugs for himself, or others, under false pretenses. It does establish that drugs were secured by Dr. Turner in a manner and amount that could be and perhaps was embarrassing to those doctors who wrote the prescriptions for Respondent.

   
   

4. The evidence does support a finding that drugs were offered or administered to patients and employees and other persons for use and/or resale.

   
   

5. The testimony does establish that the Respondent was guilty of unacceptable conduct inasmuch as the testimony as a whole establishes the fact that Dr. Turner did take advantage of the medical community in requesting prescriptions and that his conduct toward his clients and employees was casual and at times undignified.

   
   

   CONCLUSIONS OF LAW

   
   

6. That the Board is authorized by Section 460.138, Florida Statutes, to take the action described in this Final Order.

   
   

7. That the Board upon making its findings of facts and conclusions of law with respect to the matters asserted in a disciplinary proceeding conducted pursuant to Chapter 120, Florida Statutes, may thereafter consider prior violations by the Respondent as to which the Board's records reflect that the Board lawfully adjudged the Respondent guilty of the violations charged, in affixing the penalty in the instant case.

   
   

8. That based upon substantial competent evidence the Respondent engaged in the conduct of obtaining, quantities of prescription drugs from persons authorized by law to prescribe them, by use of false pretenses, and by taking advantage of the "professional courtesy" which he enjoyed by virtue of his license to practice chiropractic. The quantities of drugs obtained and the time period in which they were obtained, as these facts appear in the record, permit only two inferences which comport with logic and reason. Either the Respondent was ingesting the medication in a manner that can only be described as an abuse of the drugs, or the Respondent was offering or administering these drugs to patients, employees and other persons for use or resale, without lawful authority to do so. Therefore, it is concluded that the Respondent is guilty of violating Section 460.13(3)(b), Florida Statutes, in that he no longer possesses a good moral character.

WHEREFORE, it is hereby ORDERED and ADJUDGED that the license to practice chiropractic of the Respondent, Stanley Turner, License No. 1454, is hereby revoked as provided in Section 460.138(2), Florida Statutes, and his right to practice the profession of Chiropractic in the State of Florida is terminated.

DONE AND ORDERED this 14th day of June, 1977.

Dr. Jack K. Hendricks, President Florida State Board of Chiropractic

Examiners

Dr. Paul Vogel, Secretary-Treasurer Florida State Board of Chiropractic

Examiners

I certify this is a true and accurate copy from the files of the State Board of Chiropractic Examiners.

C. A. Hartley, Board Coordinator

Sworn to and subscribed before me this 14th day of June, 1977.

DOROTHY J. SIMPERS

Notary Public, State of Florida at Large My commission expires Mar. 15, 1978

(BOARD SEAL)

================================================================= AGENCY ORDER ON MOTION FOR STAY OF ENFORCEMENT

=================================================================

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS

In re: The Revocation or suspension of the license of:

Stanley Turner, D.C. DOAH CASE NO. 76-1798 License No. 1454

/

ORDER

THIS CAUSE CAME ON to be heard before the Florida State Board of Chiropractic Examiners, at Orlando, Florida, on July 14, 1977, for consideration of Respondent's Motion for Stay of Enforcement of the Board's Final Order, which

revoked Respondent's license and terminated his right to practice chiropractic in the State of Florida.

The Respondent was represented by Charles F. Broome, Esquire, Law Offices of Charles F. Broome, 915 S. Washington Avenue, Post Office Box 729, Titusville, Florida. The Board was not represented by its special prosecutor, but was advised by its legal counsel, Charles S. Ruberg, Assistant Attorney General.

After hearing the presentation of argument in support of the Motion by Attorney for Respondent, the Board requested its legal counsel to render advice as to the options lawfully available to the Board as to its determination of the motion. Upon being so advised, the Board deliberated and determined that the said motion should be denied, and requested its legal counsel to restate the proper wording of the grounds upon which such denial could be based.

WHEREFORE, it is ORDERED AND ADJUDGED that the Motion for Stay of Enforcement is hereby denied on the grounds that the continued practice of chiropractic by Respondent constitutes a probable danger to the health, safety, and welfare of the public.

DONE AND ORDERED THIS 4th day of August, 1977.

FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS

Dr. Jack K. Hendricks, President

Dr. Paul Vogel, Secretary-Treasurer

I hereby attest that this is a true and correct copy of this order, filed this 4th day of August, 1977 with the Secretary of State.

C. A. Hartley, Coordinator

Florida State Board of Chiropractic Examiners

(BOARD SEAL)

================================================================= AMENDED AGENCY FINAL ORDER AFTER REMAND

=================================================================

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS

In re: The Revocation or suspension of the license of:

Stanley Turner, D.C. DOAH CASE NO. 76-1798 License No. 1454

/

AMENDED FINAL ORDER AFTER REMAND

THIS CAUSE came on before the FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS

(hereinafter Board) at a public meeting, on April 12, 1978, at Holiday Inns of Palm Beach, 2830 South Ocean Blvd., Palm Beach, Florida, on remand from the DISTRICT COURT OF APPEAL FOR THE FOURTH DISTRICT OF FLORIDA, pursuant to the

Order of that Court, dated April 1, 1979, in Case No. 77-1424. A copy of that Order is attached hereto and incorporated herein as Exhibit A.

The previous Final Order of the Board dated June 14, 1977, was quashed and the Board was directed, on remand, to either adopt the Hearing Officer's Findings of Fact, or, if it wished to alter those findings, to state with particularity why the findings were modified (120.57(1)(b)(9), F.S.). In compliance with the Court's Order the Board hereby issues its Amended Final Order.

FINDINGS OF FACT

1. The findings of fact contained in Paragraphs 1,2,3, and 5 of the Recommended Order (hereinafter R.O.) rendered on April 7, 1977, by Delphine C. Strickland, Hearing Officer, Division of Administrative Hearings, are hereby adopted in their entirety and set out in haec verba as follows.

   
   

   1. The Florida State Board of Chiropractic Examiners filed an Administrative Complaint against licensee Stanley Turner, D.C., who holds license number 1454. Count 1 alleged Respondent made sexual advances toward four patients. Count II alleged that Respondent made improper sexual advances toward employees. Count III alleged that Respondent has been addicted to the habitual use of narcotics, stimulants, or other habit-forming drugs since July 1, 1975. Count IV alleged that Respondent made improper sexual advances on a patient under the guise of necessary chiropractic treatment. Count V alleged that Respondent offered and administered medicines and drugs to two patients. Count VI was dropped at the hearing. Count

      VII was dropped at the hearing. Count VIII alleged that the foregoing Counts constitute unprofessional conduct.

      Respondent denied each of the allegations of the Petitioner. (R.O. p. 1-2)

      
      

   2. The testimony of the various women who testified against Dr. Turner, together with the testimony of the women who testified for Dr. Turner, does not establish the fact that "improper sexual advances" were actually made by she Respondent, Dr. Turner. The nature of the practice of acupuncture and of the practice of chiropractic is such that the procedures themselves could be misleading as to the intent of the practitioner. (R.O. p. 2)

   3. Testimony of six medical doctors and two dentists that they had filled prescriptions for the Respondent, Dr. Turner, which prescriptions were for various drugs, Valium, Darvocet, Milhouse, Percodan, Tylenol, Robaxin, was coupled with their testimony that they issued these drugs through "professional courtesy" without ordinary examinations of the patient and that, in fact, Dr. Turner did suffer from a variety of ills including a back injury, an accident with a horse, and "hang-overs. The evidence submitted does not establish that the Respondent took all of these drugs himself or was addicted to the habitual use of narcotics, stimulants or the habit forming drugs. It does establish that drugs were secured by Dr. Turner in a manner and amount that could be and perhaps was embarrassing to those doctors who wrote the prescriptions for Respondent. (R.O. p. 2)

      
      

   4. The testimony does establish that the Respondent was guilty of unacceptable conduct inasmuch as the testimony as a whole establishes the fact that Dr. Turner did take advantage of the medical community in requesting prescrip-

      tions and that his conduct toward his clients and employees was casual and at times undignified. (R.O. p. 3)

      
      

2. The findings of fact contained in Paragraph 4 of the said Recommended Order, to-wit:

   
   

   The evidence does not support a finding that drugs were offered or administered to patients and em- ployees and other persons;

   
   

   is hereby rejected upon the Board's determination, after review of the complete record, that this finding is not based upon competent substantial evidence.

   
   

   There are two types of evidence in the record relevant to whether or not Respondent offered or administered drugs to patients, employees and other persons. First, there is circumstantial evidence which establishes a factual foundation permitting the inference that the Respondent did engage in a course of conduct which included offering or administering drugs. Secondly, there is direct testimony regarding specific instances in which drugs were offered or administered.

   
   

   The evidence adduced by the testimony of: W. Alston Brown, a doctor of medicine (T. pp.6-8); Edward F. W. Swann an orthopedic surgeon (T. pp. 8-14); Ronald C. Erbs, a pediatrician (T. pp. 14-17); Raul G. Molina, a doctor of medicine in general practice (T. pp. 17-21); Claude O. Godwin, a dentist (T. pp 45- 47); Evelyn Wise, an employee of Dr. Godwin (T. pp. 48-50); Frank Siciliano, a dentist (T. pp. 50-59); Ben C. Storey, a doctor of medicine in general practice (T. pp. 59-67); Harold F. Albert, a doctor of medicine in general practice (T. pp 88-98); Nita Eddington, a pharmacist employed as an agent- investigator by the Florida State Board of Pharmacy (T. pp. 98-115); and Samuel

   J. Barr, a doctor of medicine practicing obstetrics and gynecology (T. pp. 147-

   152) conclusively establishes that the Respondent, between December 12, 1975, and March 5, 1976, did obtain a total of 965 pills, tablets, or capsules of various prescription drugs. These include: Valium at 5 mg. strength (180); Tylenol-4 (338); Serax #30 (200); Miltown (60); Demerol 50 (15); Tigan (10); Dalmane (14); Empirin -4 (30); Therenol No. 3 (18); and Darvocet-N 100 (100).

   This same evidence also establishes that the Respondent, from June 14 to 19, 1976, obtained an additional 206 tablets of Darvocet-N 100.

   
   

   The inferences from these facts are that the Respondent was either ingesting these drugs; offering or administering them to others; or a combination of both. The Board rejects the remaining possible inference, that the Respondent did nothing but retain or dispose of all drugs after obtaining them since this inference does not comport with reason or logic.

   
   

   The inference that the Respondent was offering or administering these drugs to patients, employees, or other persons is corroborated by the following testimony:

   
   

   Jo Ann Jennings, an employee of Respondent from August to December, 1975, testified that the Respondent called her late one night, stated that he was at the office, and asked if she wanted to come down. He said that he'd been out of town and had some pills or anything else she might want. (T. p. 117)

   
   

   Donna Holley, who was 15 years old at the time she worked for Respondent for approximately two weeks in July and August, 1975, testified that Respondent had specifically asked her if she would sell drugs for him. (T. pp. 153, 155)

   
   

   Rebecca Pepe testified that she went to Respondent to receive acupuncture treatment for the purpose of losing weight and that she made at least sixteen office visits. (T. pp. 27, 32) She testified that Respondent would give her pills to counter-act throwing up, although she did not recall the name of the pills. She did not take them because she was pregnant, and she noted a warning in this regard on the bottle. (T. pp.30-31) Ms. Pepe further testified that on one occasion Respondent offered her a shot that would make her jump two feet and that he only gave it to girls who would make out with him. She refused the offer. (T. pp. 31-32) Finally, Ms. Pepe testified that in addition to pills for throwing up, and the administration of vitamins, Respondent gave her some little green pills in the cellophane wrapper from a cigarette pack, which he said were diet pills belonging to his sister. (T. pp. 40-42)

   
   

   The above-described testimony of Jo Ann Jennings, Rebecca Pepe, and Donna Holley was not directly disputed by the testimony of any other witnesses, although the record reflects substantial cross-examination directed toward impeaching the credibility of these witnesses.

   
   

   The remaining testimony material to this issue consisted of the testimony of Jo Ann Jennings that on one occasion she observed Respondent give some pills to a patient, Jeannette White, by pouring some from a bottle into an envelope, and that the label on the bottle designated its contents as Miltown. (T. pp.

   119-120) However, Jeannette White denied that Respondent ever gave her Miltown and testified that she had only been given the vitamin Niacin.

   
   

   Exceptions filed by the Board's Special Prosecutor properly raised the issue of the evidence in the record material to the factual question of whether or not Respondent offered or administered drugs to patients, employees and others. (R. pp. 44-44) It is the finding of the Board, after examining the evidence and hearing argument by its Special Prosecutor and Respondent's attorney, that Jeannette White's testimony that Respondent gave her Niacin not Miltown, and Trudy Gramazio's general testimony regarding her observations of Respondent's conduct (T. pp. 128-129, 131) does not constitute substantial, competent evidence, sufficient to form the basis of the Hearing Officer's

   recommended finding that the evidence does not support a finding that drugs were offered or administered to patients and employees and other persons.

   
   

   Therefore, based upon the evidence appearing in the record, the Board hereby finds that drugs were offered by Respondent to patients, employees, and other persons.

   
   

3. Having adopted four of the Hearing Officer's five recommended findings of fact, having rejected the remaining recommended findings of fact because it was not supported by competent substantial evidence, and having substituted the contrary finding, therefore, stating with particularity why the finding was so modified, the Board now finds that there is substantial competent evidence in the record to support an additional finding of fact, and that the additional finding is relevant to the charges against Respondent.

Therefore, the Board hereby finds that Respondent obtained drugs from various doctors, dentists, and pharmacists through false pretenses, misrepresentation and deceit.

The evidence of record, which supports this finding, may be summarized as follows:

Due to an injury to his left thigh, the result of being kicked by a horse, Respondent sought and received treatment from a Dr. Cerrato, who practiced in an orthopedic clinic, which was further staffed by Dr. Edward F. W. Swann and Dr.

Sasser. (T. p. 9) The treatments were initiated on October 27, 1975, and continued for a series of visits into November, 1975. (T. p. 9, 12)

Then, on December 5, 1975, Respondent began to receive treatment from a dentist, Dr. Frank Siciliano. Dr. Siciliano's treatment primarily consisted of placing a bridge to fill a gap resulting from a missing tooth. (T. p. 51)

Such treatment involves not only the construction of the bridge, but also the drilling away of portions of the teeth on either side of the gap. (T. p. 55-56) Therefore, Dr. Siciliano's treatment continued through the end of January, 1976. (T. p. 50) On December 5, 1975, Respondent received from Dr. Siciliano a prescription for Percodan for pain resulting from the bridgework. (T. p. 51)

On December 12, 1975, Respondent went to a medical doctor in general practice, Dr. Harold F. Albert, complaining of back pain, and giving Dr. Albert a history of a football injury to his back in 1970 and treatment therefore, in Orlando. (T. p. 89) Respondent stated that he was unable to find a doctor in the Titusville area to treat his back (T. p. 89), even though less than a month previously he had been treated in a clinic staffed by at least three specialists in orthopedics. Based upon the Respondent's history, which included a portion of his medical records, and Respondent's subjective symptoms of tenderness in his back. Dr. Albert prescribed Roboxin and Valium, which have tranquilizing and muscle-relaxing effects. (T. p. 89-90, 91) For pain, Dr. Albert prescribed Percodan, and even though Respondent requested a prescription for 100 tablets, Dr. Albert would only prescribe 50. (T. P. 90)

Dr. Albert did not see Respondent again. (T. p. 91-92) However, one week later on December 19, 1975, Respondent telephoned Dr. Albert and complained that the Percodan was upsetting his stomach and asked for Tylenol #4 as a substitute. (T. p. 92) Dr. Albert did not respond to this call because in the time since Respondent's office visit, he discovered that Respondent had apparently lied to him about X-rays allegedly taken of his back four months previously. Respondent did not advise Dr. Albert that three days previously, on December 16, 1975, he

had filled a prescription for 50 tablets of Tylenol #4 from a Dr. Wray. (T. p.

103) The circumstances under which this prescription was obtained were not brought out at the hearing. On December 22, 1975, Respondent telephoned a medical doctor practicing obstetrics and gynecology, Dr. Samuel Barr, with whom he was acquainted socially through their country club. (T. p. 150) Without making any reference to his treatments by Dr. Albert and Dr. Siciliano, Respondent complained of back pain and requested prescriptions for 100 tablets of Tylenol #4 and 60 tablets of Miltown-400. Dr. Barr gave Respondent these prescriptions as a "courtesy". (T. p. 148)

The next day Respondent went to see a medical doctor, Dr. W. Alston Brown.

Again, with no reference to the treatments and prescriptions by the other physicians, Respondent complained of having trouble sleeping and received a prescription for Dalmane. (T. p. 7) Respondent made this complaint even though he had obtained tranquilizing and muscle-relaxant drugs from his dentist only 18 days previously.

On December 29, 1975, exactly one week after receiving the Tylenol #4 prescription (100 tablets) from his ostetrician acquaintance, Respondent telephoned a pediatrician, Dr. Ronald Erbs. Again he complained of back pain, without any reference to his contacts with other doctors, stating instead that his own physician was out of town. On this basis, Dr. Erbs telephoned in a prescription for 50 tablets of Tylenol #4. (T. p. 15)

Two days later, on December 31, 1975, Respondent, advised Dr. Siciliano, his dentist, whom he was still seeking for the bridgework, that the Percodan, prescribed back on December 5, 1975, was upsetting his stomach, therefore, Dr. Siciliano wrote him a prescription for Tylenol #4. (T. p. 52) On this same day, Respondent, for reasons not brought out at the hearing, received all five refills (150 tablets) of the Valium prescribed by Dr. Albert on December 12, 1975. (T. p. 104)

Less than a week later, on January 5, 1976, Respondent went to see a medical doctor in general practice, Dr. Paul C. Molina, complaining of a backache or headache. On the basis of "professional courtesy," Dr. Molina prescribed 50 tablets of Tylenol #4. No examination was done and there is no indication that Dr. Molina either inquired or was informed of Respondent's contacts with other doctors. (T. p. 18, 19) On this same day, Respondent contacted Dr. Siciliano, his dentist, and told him that the prescription for Tylenol #4 given to him on December 31, 1975, had been misplaced or picked up by someone else at the drug store, and that he wanted another prescription. Dr.

Siciliano gave it to him. (T. p. 53) The respondent did not tell Dr. Siciliano about the prescriptions he had obtained from the other doctors. (T. pp. 57-58)

On January 15, 1976, Respondent returned to the orthopedic clinic where had had been treated for the horse-kick injury. On this occasion he saw Dr. Edward

F. W. Swann, an orthopedic surgeon, and complained of a long history of difficulty with the mid-thoracic spine. Dr. Swann diagnosed the condition as a "simple degenerative type arthorosis of the thoracic spine." He prescribed an anti-inflammatory drug named Moban and Darvocet-N and Tylenol #4 for pain. (T. pp. 12-13) Nevertheless, for reasons not appearing in the record, four days later, on January 19, 1976, Respondent obtained a prescription for Theronal #3, from Dr. Sasser, a third doctor practicing at the same orthopedic clinic. (T.

p. 104) Three days later, on January 22, 1976, Respondent also obtained a prescription for Tylenol #4 from a Dr. May. (T. pp. 104)

On January 24, 1976, Respondent called the office of Dr. Claude O. Godwin, a dentist. Dr. Godwin was out of town, but Miss Jeorger, his dental assistant, after being informed of Respondent's complaint about a toothache, and his request for Tylenol #4, contacted Dr. Godwin and got authority for such a prescription, which was issued. (T. p. 46-47)

On January 29, 1976, Respondent returned to Dr. Siciliano, the dentist doing his bridge-work, and requested more Tylenol #4. Dr. Siciliano gave him the prescription, but told him it would be the last one, because his gums appeared to be healing properly. (T. pp. 54-55) Nevertheless, Respondent, in about a week, called Dr. Godwin's office, again requesting Tylenol #4. Ms.

Wise, also employed by Dr. Godwin, advised him that no further prescriptions could be issued without an examination. Respondent claimed to be too busy for an appointment, even though Ms. Wise offered to make it either earlier than normal office hours or during lunch. Respondent attempted to persuade Ms. Wise to give him a prescription by alluding to the fact that Dr. Godwin would lose money if she did not take care of him. (T. pp. 48-49) Dr. Godwin assumed that he was Respondent's dentist because he had treated him in 1974, but apparently was not advised of the on-going dental treatment Respondent was receiving from Dr. Siciliano. (T. p. 47)

On February 5, 1976, Respondent went to Dr. Ben C. Storey, a medical doctor in general practice. He complained of a headache resulting from his previous night's consumption of alcohol. Dr. Storey rendered his usual treatment for this condition, prescribing Atarax, 75, Demoral, 100, and D.H.E., 45. (T. p.

1. Respondent also apparently received prescriptions from Dr. Storey for Tigan and Serax. (T. p. 107) Respondent requested the pharmacist to refill the Serax prescription on February 12, 1976 but his request was denied. On February 16, 1976 respondent convinced the pharmacist to give him three refills for the Serax prescription by telling him that he was going out of town. (T. p. 107)

   
   

   CONCLUSIONS OF LAW

   
   

   Pursuant to Section 120.57(1)(b)(9), Florida Statutes, the Board rejects the Hearing Officer's recommended conclusions of law in their entirety, and concludes:

   
   

   1. That the Board is authorized by Section 460.138, Florida Statutes, to take the action described in this Final Order.

      
      

   2. That in the instant case the Hearing Officer erred in refusing to admit into evidence the Order of the Board of Chiropractic Examiners entered on August 28, 1972, revoking the license of the Respondent. The Board upon making its findings of fact and conclusions of law with respect to the matters asserted in a disciplinary proceeding conducted pursuant to Chapter 120, Florida Statutes, may thereafter consider violations by the Respondent, as to which the Board's records reflect that the Board lawfully adjudged the Respondent guilty of the violations charged in affixing the penalty in the instant case.

      
      

   3. That the Respondent is guilty of violating Section 460.13(3)(k), Florida Statutes, which provides in relevant part:

      
      

      "The Board, . . . , shall have the authority to discipline . . . the holder of a license to practice as a chiropractic physician, who is

      found guilty by the board of one or more of the following:

      * * *

      (k) That he has, except as provided in S. 460.262, prescribed or administered to any person any medicine or drug . . ."

      
      

      The circumstances of Respondent's conduct in obtaining such large quantities of various prescription drugs, including the methods by which he obtained them, coupled with the direct testimony of Rebecca Pepe, Jo Ann Jennings, and Donna Holley, constitutes competent substantial evidence that Respondent did offer or administer drugs in violation of the above-cited statute. The utilization of drugs and medication, other than vitamins and food extracts, is excluded from the scope of practice of chiropractic. 460.11(2)(b)

      F.S. Reasonable persons, without special knowledge of chiropractic, may justifiably be expected to rely upon Respondent's status as a physician, and accept drugs and medication provided to them by Respondent without questioning the propriety and safety of their use. Therefore, regardless of whether prescriptions are written, injections given or drugs are simply handed to any person, by a chiropractic, especially under color of a chiropractic license, such conduct is included within that conduct prohibited by 460.11(2)(b), F.S., and may be the basis for discipline pursuant to 460.13(3)(k), F.S., as alleged in Count V of the Board's Administrative Complaint.

      
      

   4. That the Respondent is guilty of violating Section 460.13(3)(m), Florida Statutes, which provides in relevant part:

      
      

      "The board shall have the authority

      to discipline . . . the holder of a license to practice as a chiropractic physician, who is found guilty by the board of one or more of the following:

      * * *

      (m) That he is guilty of unprofessional conduct which is defined to mean: Any conduct which

      is reasonably likely to deceive or defraud the public,

      
      

      In his dealings with the various doctors, dentists, and pharmacists, from whom he obtained drugs, Respondent's conduct was deceptive. He never advised any of the doctors or dentists, whom he contacted, about the treatments and prescriptions he was receiving from the others. Therefore, these men were deprived of information material to their exercise of professional judgment in prescribing medication. Respondent's conduct was such that he provided only that information calculated to get him the drugs he was seeking, adjusting his representations to the responses of the physicians he contacted. Thus, for example, when Dr. Albert appeared to expect that a person having Respondent's history and complaints would have had X-rays taken more recently than five years before, Respondent told him that he had had X-rays taken four months previously at a certain hospital. Dr. Albert found this to be untrue when he sought to review the X-rays.

      
      

      Had Respondent not been a licensed chiropractic physician, he would not have been able to benefit from the "professional courtesy," which, in several instances, was the basis for his obtaining prescriptions without the usual complete history and thorough examination by the prescribing doctors and dentists. Therefore, a strong connection exists between his professional status and his deceptive conduct.

      The doctors, dentists, and pharmacists from whom Respondent obtained drugs, and the patients, employees, and others to whom he offered and administered them are members of the public, and were subjected to Respondent's deceptive conduct and false pretenses. Therefore, Respondent's conduct is "unprofessional conduct" as defined in 460.13(3)(m), F.S., and as alleged in Count VIII of the Board's Administrative Complaint.

      
      

   5. That the Respondent is guilty of violating Section 460.13(3)(b), Florida Statutes, which provides in relevant part:

"The Board, . . ., shall have the authority to discipline . . . the holder of a license to practice as a chiropractic physician, who is found guilty of one or more of the following:

* * *

(b) That the holder thereof no longer possesses a good moral character

The record does not contain competent substantial evidence sufficient to establish that Respondent's conduct in making sexual advances to patients and employers constitutes a demonstrable lack of good moral character. However, there is more than enough competent substantial evidence in the record to demonstrate Respondent's deceptive and unprofessional conduct in obtaining drugs and administering them to others. Also, the quantities of drugs obtained and the time period and frequency in which they were obtained, permits an inference, aside from his administering drugs to others, that Respondent was also ingesting these drugs in quantities and combinations that can only be described as an abuse thereof, in the sense that the medication was not being taken in accordance with the treatment of a doctor or doctors who were completely advised of Respondent's condition, history, and on-going treatment by others.

The record as a whole supports these conclusions and establishes by competent substantial evidence that Respondent's conduct does not rise to the moral standard necessary for a physician in whose hands the public must place their trust, confidence, and health. Therefore, the Respondent no longer possesses the good moral character on which the grant of his license was in part based.

PENALTY

WHEREFORE, it is hereby ORDERED AND ADJUDGED that the license to practice chiropractic of the Respondent, Stanley Turner, License No. 1454, is hereby revoked as provided in Section 460.138(2), Florida Statutes, and his right to practice the profession of Chiropractic in the State of Florida is terminated.

DONE AND ORDERED this 25th day of May, 1978.

I HEREBY CERTIFY this is a true and accurate copy from the files of the Florida State Board of Chiropractic Examiners.

C. A. Hartley, Executive Director

(BOARD SEAL)

PAUL VOGEL, D.C

President

WALTER AIKEN, D. C.

Secretary-Treasure

Sworn to and subscribed before me this 25th day of 1978.

DOROTHY J. SIMPERS

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 1978

STANLEY TURNER, D.C., NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING PETITION

Petitioner, AND IF FILED, DISPOSED OF.

v. CASE NO. 77-1424

DOAH CASE NO. 76-1798

FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS,

Respondent.

/ Opinion filed April 4, 1978.

Petition for Writ of Certiorari to the Florida State Board of Chiropractic Examiners.

Charles F. Broome, Titusville, for petitioner.

Robert L. Shevin, Attorney General, and Charles S. Ruberg, Assistant Attorney General, Tallahassee, for respondent.

PER CURIAM,

The petitioner's license to practice chiropractic was revoked by the Florida State Board of Chiropractic Examiners despite findings of the Hearing Examiner that the petitioner was innocent of the particular charges contained in the complaint and a recommendation that the petitioner suffer only a public reprimand.

We find that the Board altered the Hearing Officer's findings of fact without stating with particularity why certain findings were modified as required by Section 120.57(1)(b)(9), Florida Statutes (1975). See Moore v. Florida Construction Industry Licensing, So.2d (Fla. 4th DCA, Case No. 77- 2083, opinion filed February 21, 1978).

Accordingly the petition for writ of certiorari is granted, the Final Order is quashed, and upon remand the Board should either adopt the Hearing Officer's findings of fact or, if it wishes to alter these findings, it should, as required by Section 120.57(1)(b)(9), state with particularity why the findings are modified.

ALDERMAN, C.J., and CROSS and DAUKSCH,JJ., concur.

FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS

MANDATE

from

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and Law of the State of Florida.

WITNESS the Honorable James C. Downey, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and the seal of the said Court at West Palm Beach, Florida on this day.

Date: April 24, 1978

Case No. 77-1424

Clerk of the District Court of Appeal of the State of Florida, Fourth District

Docket for Case No: 76-001798

Orders for Case No: 76-001798