STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-023

)

MICHAEL RUSH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on November 15, 1982, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Harold Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

For Respondent: Martin J. Schwartz, Esquire

Suite 300 Forum Building 2632 Hollywood Boulevard

Hollywood, Florida 33020

The issue for determination at the final hearing was whether the Respondent Michael Rush's license to practice podiatry should be suspended, revoked or otherwise disciplined based on his conviction in federal court of violating Title 21, USC 841(a)(1), conspiracy to possess marijuana.

Petitioner's Exhibits 1 and 2 were offered and admitted into evidence. Respondent's Exhibit 1 was admitted into evidence at the final hearing and character affidavits filed with the Hearing Officer after the hearing were admitted as Respondent's Exhibits 2(a)-(f). The Respondent Michael Rush testified on his own behalf.

Proposed Recommended Orders and Memorandums of Law have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. The Respondent Michael Rush is a Doctor of Podiatry having been issued license number PO 0000529.

2. The Respondent Rush was charged with and convicted of conspiracy to possess and import marijuana, Title 21 USC 841(a)(1), in the United States District Court, Connecticut.

   
   

3. On March 30, 1981, the Respondent's conviction was affirmed, United States v. Rush, 666 F.2d 10 (2nd Cir. 1981).

   
   

4. The Respondent Rush was incarcerated for a period of fourteen months, paid a fine of $15,000 and forfeited $33,000 from his savings account to the federal government pursuant to 21 USC 881(a)(6)(1976).

   
   

5. The Respondent Rush is a resident of Broward County, Florida and maintains a professional office at 4700 Sheridan Street, Hollywood, Florida.

   
   

6. Prior to the instant conviction, the Respondent Rush had never been charged with or convicted of any crime.

   
   

7. The Respondent Rush has been active in community affairs, having participated in Little League, Boy Scouts, the Broward County Fair, and has received character references from a variety of local community leaders.

   
   

8. The Respondent Rush is currently practicing his profession, has obtained professional liability insurance through the Podiatry Trust and is on the staff of Community Hospital of North Broward and Hollywood Pavillion.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

10. Section 461.013(1)(c), Florida Statutes, empowers the Board of Podiatry to revoke, suspend or otherwise discipline a licensee if found guilty, regardless of adjudication

    
    

    of a crime in any jurisdiction which directly relates to the practice of podiatry or to the ability to practice podiatry. . .(Emphasis supplied)

    
    

11. Based on the evidence presented at the final hearing the Respondent's federal conviction has not affected his ability to practice podiatry. No allegation was made that the Respondent's conviction impaired in any manner his professional office and hospital practice.

    
    

12. Although podiatrists can prescribe drugs that relate specifically to the scope of their authorized practice, Section 461.003(3), Florida Statutes, the Respondent has not been convicted of a crime involving the illegal possession of a drug which could be lawfully prescribed in the course of his practice. The Respondent was not involved in the possession of illegal drugs; rather, he served as a financer for the individuals who actually imported and possessed the marijuana in question.

    
    

13. The words "directly relates" as used by the Legislature in Section 461.013(1)(c), Florida Statutes, significantly narrowed the category of offenses which the Board of Podiatry could consider in order to invoke its disciplinary

    powers. Prior to the enactment of Section 461.013(1)(c), Florida Statutes (1979) the Board was authorized to take disciplinary action when a podiatrist was convicted of a felony in any court if in Florida the offense would also constitute a felony. See Section 461.08(1)(b), Florida Statutes (1977). The narrowing of permissible grounds for disciplinary action by the Board based on a prior conviction is consistent with the general legislative policy enunciated at Section 112.011, Florida Statutes, which prohibits state and local agencies from denying an individual a license to practice a profession or trade based on a prior felony conviction unless the crime is a felony or first degree misdemeanor and directly relates to the license sought.

    
    

14. In the instant case, the Respondent's conviction did not result from activities within his office or as a direct or indirect result of his licensure as a podiatrist. Additionally, the Respondent was not convicted of possession and/or sale of a controlled substance but conspiracy to possess marijuana. See Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), reinstating the real estate license of a person convicted of three counts of possession of marijuana. Having received the transcript of the Respondent's federal criminal trial, it is difficult for the undersigned to perceive how the specific acts found by the jury to have been committed by the Respondent in furtherance of a conspiracy directly relate to his ability to practice his profession. 1/ It is unlikely that the Respondent, who has never previously been involved in any illegal activity, poses a present threat to his patients or the public and that any significant state interest would be furthered by subjecting him to the Board's disciplinary powers.

RECOMMENDATION

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

That the Administrative Complaint filed against Michael Rush by the Board of Podiatry be dismissed.

DONE and ORDERED this 30th day of December, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.

ENDNOTE

1/ It should also be noted that the Respondent has forfeited a significant sum of money, spent fourteen months in prison and will be on probation for the next three years due to his federal conviction. Moreover, although the Respondent's conviction is today a fait accompli, the matters discussed by Judge Friendly in

his dissenting opinion in United States v. Rush, 666 F.2d 10, 13 (2nd Cir. 1981) and the Hearing Officer's review of the testimony presented at trial, have raised considerable doubt concerning the appropriateness of attempting to exact yet another penalty from this particular individual.

COPIES FURNISHED:

Harold Braxton, Esquire

45 Southwest 36th Court Miami, Florida 33135

Martin J. Schwartz, Esquire Suite 300 Forum Building 2632 Hollywood Boulevard

Hollywood, Florida 33020

Dorothy Faircloth, Executive Director Florida Board of Podiatry

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000023

Orders for Case No: 82-000023