STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1877

)

JOEL Z. SPIKE, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on December 18, 1980 in Miami, Florida. The transcript of the final hearing was received on January 21, 1981. Pursuant to leave, the parties were afforded through January 5, 1981 to submit post-hearing exhibits and other memoranda in support of their respective positions. Post-hearing submissions were received and considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Robert D. Newell, Jr., Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Stewart A. Marcus, Esquire

2251 Southwest 22nd Street Miami, Florida 33145

ISSUE

The issue posed herein is whether or not the Respondent's Osteopathic Physician License should be suspended, revoked or otherwise disciplined based on conduct, which will he set forth herein in detail, as set forth and defined in the administrative complaint filed herein on September 30, 1980.

FINDINGS OF FACT

Respondent, during times material, has been an Osteopathic Physician who has been issued License No. 0003850.

1. On or about April 17, 1978, Respondent, Joel Z. Spike, entered into a Consent Agreement with the Board of Osteopathic Medical Examiners, hereinafter referred to as the "Board", the terms of which provided that if the Respondent complied with certain conditions precedent and subsequent to the issuance of a license, that the Board would issue to Respondent a one-year probationary

   license to practice osteopathic medicine within the State of Florida. Under the terms of the Consent Agreement, Respondent's failure to satisfy any of the conditions subsequent to the issuance of the probationary license would result in an automatic suspension of such license. The Consent Agreement was entered as a final order of the Board. (Petitioner's Exhibit 1).

   
   

2. Respondent satisfied the conditions precedent and the Board issued the Respondent a probationary license on April 27, 1978. 2/

   
   

3. On March 28, 1979, it is alleged that Respondent failed to satisfy one of the conditions subsequent to the Consent Agreement of April 17, 1978 by his (Respondent's) failure to make a required annual appearance before the Board to demonstrate his physical and mental condition and ability to practice osteopathic medicine with reasonable skill and certainty. It is thus alleged that pursuant to the terms of the Consent Agreement and order of April 17, 1978, Respondent's license was automatically suspended. 3/

   
   

4. On March 28, 1979, Respondent and the Board entered into a second Consent Agreement under the terms of which Respondent agreed to cease and desist from the practice of osteopathic medicine in this State until such time as the Respondent could make a personal appearance before the Board, such appearance being an unsatisfied condition subsequent or required by the first Consent Agreement entered by and between the parties dated April 17, 1978. Respondent signed the second Consent Agreement which was entered as a final order from the Board and became effective April 24, 1979.

   
   

5. On July 18, 1979, August 1, 1979, September 19, 1979, September 25, 1979, July 24, 1979, October 8, 1979, November 5, 1979, October 31, 1979, and October 22, 1979, Respondent wrote prescriptions for Percodan tablets to one Eliot Schuler. Petitioner alleges that such conduct constituted the practice of osteopathic medicine as to Eliot Schuler, without an active license, and while Respondent's license was suspended in violation of Section 459.013(1)(a) and (b) Florida Statutes (1979), and the provisions of Section 459.015(1)(x), Florida Statutes (1979). 4/

   
   

6. Respondent disputes the allegations that he wrote prescriptions for Percodan tablets to Eliot Schuler without an active license to practice osteopathic medicine.

   
   

7. On April 9, 1980, in the Circuit Court for the 11th Judicial Circuit, Respondent pled nolo contendere to all counts of an eight-count information alleging two counts of the unlawful practice of medicine and six counts of sale or delivery of a controlled substance. Respecting this plea, the court withheld adjudication and Respondent was placed on probation initially for a period of eighteen (18) months. Petitioner thus alleges that Respondent thereby violated Section 459.015(1)(c), Florida Statutes (1979).

   
   

8. Respondent defends the complaint allegations on the basis that the Board did not automatically suspend his license since he provided the Board with ample notice and a justifiable reason for his failure to attend the required annual appearance as set forth in the April, 1978 Consent Agreement. (Petitioner's Exhibits 1 and 2). In this regard, it is undisputed that the Respondent entered a plea of nolo contendere to two counts of the unlawful practice of medicine and six counts of the sale or delivery of a controlled substance in violation of Chapters 458.327, 459.013 and 893.13, Florida Statutes. Respondent was initially placed on probation for an eighteen month

   period and an order of modification was subsequently entered which changed his probation from reporting to non-reporting. (Petitioner's composite Exhibit 3).

   
   

9. It is also undisputed that the Respondent was advised by Petitioner's Executive Director of the reporting requirements (annually) which was entered by Petitioner and Respondent on April 17, 1978. (Petitioner's Exhibit 4). In this regard, Respondent's prior counsel, Phillip J. Mandina, requested a continuance of the Board's annual meeting to consider Respondent's probationary licensing due to his confinement in a hospital in Miami, Florida. (Petitioner's Exhibit 5).

   
   

10. Documentary evidence introduced and received herein reveals that Respondent was a patient at the emergency room at Biscayne Medical Center on January 26, 1979 with a diagnosis of multiple trauma as a result of an automobile accident. Emergency room record notations reveal that Respondent had taken 150 milligrams of Demerol earlier on the 26th of January, 1979 and he had in his possession one empty thirty cc vial of Demerol 50 milligrams/cc and one 20cc vial of Demerol 100 milligrams/cc of which there were approximately 9cc's remaining. A consulting psychologist and an orthopedic surgeon who attended Respondent during his visit at Biscayne Medical Center concluded that Respondent suffered from severe chronic drug addiction and should receive proper treatment for this disease prior to any resumption of treating of patients. (Petitioner's composite Exhibit 6).

    
    

11. Respondent submitted a renewal fee of $85.00 for the renewal of his osteopathic medical examiner's license. By letter dated August 28, 1980, the Board's Executive Director, Dorothy Faircloth, notified the Administrator for the Office and Records Administration, Charles R. Beck, that Respondent should not have been allowed to renew his license under the terms of the subject Consent Orders and requested that Respondent return the license issued. It was also indicated that a $85.00 refund would be processed and forwarded to Respondent within approximately four weeks. (Petitioner's Exhibit 7).

    
    

12. Finally, Respondent contends that even though he was of the opinion that he possessed an active license, he would not actively engage in the practice of medicine. Respondent is presently involved in a marriage counseling practice and his ultimate goal is that of teaching and conducting therapy sessions. To support his position that he still possessed a license to practice medicine, Respondent pointed out that when he submitted his renewal fee, his license was issued and no action was taken by the Board to retrieve his license until approximately September 12, 1980. Respondent avers that that was his first notice that the Board considered his license suspended due to his failure to appear before the Board annually as per the April 17, 1978 Consent Agreement. Respondent urges that he felt that the request from his former counsel for an abatement of the annual review proceedings of his probationary status had been received and granted.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapters 120.57(1) and 459.015, Florida Statutes.

    
    

14. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

15. The authority of the Petitioner is derived from Chapter 459, Florida Statutes.

    
    

16. Chapter 459.015, Florida Statutes (1979), sets forth specific acts which shall constitute grounds from which disciplinary action shall be taken against licensed osteopathic physicians. Included among such acts is a provision for disciplinary action to be taken when a licensee has been:

    
    

    Convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of osteopathic medicine or to the ability to practice osteopathic medicine. Any plea of nolo contendere shall be considered a conviction for

    purposes of this chapter. (Subsection (1)(c) thereof).

    
    

17. Chapter 459.013(1)(a), Florida Statutes (1979), provides in pertinent part that the practice of osteopathic medicine, or an attempt to practice osteopathic medicine, without an active license constitutes a felony of the third degree. The use or the attempted use of a license to practice osteopathic medicine which is suspended . . . is also a felony of the third degree. Chapter 459.013(1)(b), Florida Statutes (1979).

    
    

18. Chapter 459.015(1)(x), Florida Statutes (1979), provides in pertinent part that "the Board may take disciplinary action against a licensee who violates any provision of this Chapter, a rule of the Board or department, or a lawful order of the Board or department previously entered in a disciplinary hearing . . . "

    
    

19. Respondent's failure to personally appear before the Board regarding his physical and mental condition and subsequent treatment thereof as called for in the parties' Consent Agreement dated April 17, 1978 constitutes a failure on his part to obey a lawful order of the Board previously entered in a disciplinary hearing in violation of Chapter 459.015(1)(x), Florida Statutes (1979). Based thereon, Respondent's license to practice was automatically suspended as set forth in the April, 1978 Consent Agreement.

    
    

20. Respondent's subsequent practice of osteopathic medicine and his use of the license (which was then suspended) to prescribe controlled drugs for Eliot Schuler constitute a violation of Chapter 459.013(1)(a) and (b), Florida Statutes (1979). Respondent's plea of nolo contendere to the subject charge which directly relates to the practice of osteopathic medicine amounts to conduct violative of Chapter 459.015(1)(c), Florida Statutes (1979).

    
    

21. Respondent's contention that his license was not automatically suspended and his claimed belief that counsel's request on his behalf for abatement of the annual Board appearance was considered. These contentions however are not persuasive in view of the serious potential for Respondent to endanger the public if allowed to practice medicine without regulation. The practice of medicine is recognized as potentially dangerous to the public if conducted by unsafe or incompetent practitioners. The Board is duty bound to ensure that every licensed osteopathic physician meet minimum requirements for safe practice. Likewise, the Board must prohibit from practice those physicians

who fall below minimum competency or who otherwise present a danger to the public. Respondent's conduct, as found herein, fits the latter category.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED:

That Respondent's license to practice osteopathic medicine be suspended for a period of two (2) years from the date that the Board takes final agency action.

RECOMMENDED this 12th day of March, 1981 in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1981.

ENDNOTES

1/ To the extent that the parties' proposed findings are not incorporated herein, said proposed findings were either irrelevant to the issues or not supported by the evidence of record.

2/ The probationary status apparently stemmed from Respondent's prior drug related dependencies.

3/ Respondent contends that ample justification was provided to the Board as to the reasons for his non-appearance and thus no automatic suspension resulted therefrom.

4/ The above facts are found based on the parties' joint stipulation entered at the outset of the hearing herein.

COPIES FURNISHED:

Robert D. Newell, Jr., Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Stewart A. Marcus, Esquire 2251 S. W. 22nd Street Miami, Florida 33145

Docket for Case No: 80-001877

Orders for Case No: 80-001877