STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3146

)

WILTON MCLEAN REAVIS,JR., )

)

Respondent. )

)

RECOMMENDED ORDER

The Petitioner, Wilton Reavis, has filed a petition challenging the Board of Medical Examiners' Notice of Intent to Reprimand him. This is a disciplinary proceeding. Although Dr. Reavis is styled as the Petitioner in this cause, it is the Board who is actually the Petitioner and has the burden of proof in the case. The style is hereby altered to reflect the proper status of the parties.

Prior to final hearing in this cause, Dr. Reavis, the Respondent, moved to dismiss the Board's Petition (Notice of Intent to Reprimand). A hearing on the motion was held and both sides submitted briefs on the legal issues which have been read and considered. The parties are in agreement with regard to the facts which have given rise to this interesting case. The facts are as follows:

FINDINGS OF FACT

1. In 1977, Dr. Reavis applied for licensure as a medical doctor in Florida by endorsement pursuant to Section 458.051, [now Section 458.313(3)], Florida Statutes. Dr. Reavis was licensed in January 1978 by the Board.

   
   

2. Dr. Reavis moved to Lakeland, Florida in 1978, where he has practiced medicine continuously since that time.

   
   

3. The Board without actual notice to Dr. Reavis entered a Final Order on February 5, 1981, which purported to declare null and void the license of Dr. Reavis to practice medicine in Florida.

   
   

4. Dr. Reavis became aware of the Board's action in 1984 when he sought to renew his license. Dr. Reavis immediately took steps to have the Board's order of February 5, 1981, rescinded.

   
   

5. The Board reinstated the license of Dr. Reavis on February 15, 1984, but concurrently gave notice of its intent to reprimand Dr. Reavis for violation of Rule 21M-22.17, Florida Administrative Code. Rule 21M-22.17, Florida Administrative Code was enacted on December 12, 1983.

6. Rule 21M-22.17, Florida Administrative Code, requires a doctor licensed by endorsement to present evidence to the Board of actually practicing in Florida. It is this provision of the rule which the Board alleges Dr. Reavis violated.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has authority to hear this case and consider the Motion to Dismiss which is based upon the facts of this case. The parties have had an opportunity to fully develop and argue their respective positions.

   
   

8. The Board's proposed disciplinary action is safely based upon the application of Rule 21M-22.17, Florida Administrative Code, adopted on December 13, 1983, to acts which the Respondent is alleged to have admitted in 1981. This is the retroactive application of a penal provision of the law. The Board argues that it may apply the rule retroactively because the rule was in effect when the doctor was reinstated. This reasoning is totally fallacious. The

   Board's action is a violation of Section 10, Article I, of the U.S. Constitution and Section 10, Article I of the Florida Constitution. See Black's Law Dictionary, "ex post facto."

   
   

9. The facts show that the Board violated the doctor's due process rights by failing to give him notice of its 1981 revocation of his license thereby denying him the right to a hearing. When the Board reinstated the doctor it simultaneously sought to reprimand him by applying retroactively, Rule 21M- 22.17, Florida Administrative Code, contrary to the clear prohibitions regarding ex post facto application of penal laws. In summary, the Board has sought to violate the doctor's constitutional rights twice without cause. This matter should be dismissed immediately.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Board of Medical Examiners dismiss forthwith the Notice of Intent to Reprimand, and take no penal action against the Respondent, Dr. Wilton Reavis.

DONE and ORDERED this 22nd day of January, 1985, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985.

COPIES FURNISHED:

Susan Tully, Assistant Attorney General

Department of Legal Affairs Office of the Attorney General The Capitol

Tallahassee, Florida 32301

Thomas L. Clarke, Jr., Esquire

P.O. Drawer J

Lakeland, Florida 33802

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director

Department of Professional Regulation

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003146

Orders for Case No: 84-003146