STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 84-3329

) DPR CASE NO. 0035663

WALKER L. WHALEY, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard through written stipulations and exhibits presented by the parties to the Division of Administrative Hearings, Hearing Officer Diane A. Grubbs.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Samuel S. Jacobson, Esquire

Suite 2902, Independent Square Jacksonville, Florida 32202

By Administrative Complaint issued on July 6, 1984, the respondent was charged with violating the Medical Practice Act, Chapter 458, Florida Statutes. Specifically, the complaint alleges that the respondent violated Section 458.331(1)(c) Florida Statutes, by being convicted or found guilty of a crime relating to the practice or the ability to practice medicine. The respondent requested a formal hearing pursuant to Section 120.57(1), and the matter was referred to the Division of Administrative Hearings for further proceedings.

The parties filed two stipulations. In the first, the allegations set forth in the Administrative Complaint were admitted. In the second stipulation the parties agreed that the indictment, a partial transcript of the sentencing hearing, letters of reference, and a petition could he considered in recommending a penalty. Those documents, filed November 14, 1985, are numbered respectively Joint Exhibits 1-4. The parties also stipulated to additional facts.

Both parties have filed proposed recommended orders, and a ruling on each proposed finding of fact has been made in the Appendix to this recommended order.

Based upon the stipulations of the parties, the following are found as relevant facts:

FINDINGS OF FACT

1. The Respondent, Walker L. Whaley, is a licensed physician in the State of Florida, having been issued license number ME 0025950.

   
   

2. On February 7, 1984, Respondent was convicted, in the United States District Court for the Middle District of Florida, of conspiracy, to wit: Between at least on or about June 1982, and on or about April 7, 1983, Respondent did unlawfully, willfully, willingly, and intentionally combine, conspire, confederate and agree together with persons known or unknown to manufacture cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1)

   
   

3. Initially, Dr. Whaley was indicted on three counts. He was acquitted of two of the three counts appearing in the indictment against him. There was a mistrial because of the jury's inability to reach a verdict on the remaining count. He was ultimately convicted on the remaining count after a second trial.

   
   

4. Respondent's criminal conviction is currently on direct appeal.

   
   

5. The matters alleged in the indictment against Dr. Whaley pertain to alleged personal activities and were not alleged to have occurred as part of the conduct of his medical practice.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.

   
   

7. The Board of Medical Examiners is authorized by Section 458.331, Florida Statutes, to discipline holders of medical licenses who have violated that section of the act. Section 458.331(2), Florida Statutes, provides that the board may impose one or more of the penalties enumerated within that subsection "[w]hen the board finds any person guilty of any of the grounds set forth in subsection (1)." One of the grounds set forth in subsection (1) is:

[b]eing convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine.

Conviction of a crime involving conspiracy to manufacture cocaine is directly related to the practice or the ability to practice medicine. See, Rush v.

Department of Professional Regulation, 448 So. 2d 26 (Fla. 1st DCA 1984).

RECOMMENDATIONS

Based upon the foregoing findings of fact and conclusions of law, and upon consideration of the exhibits presented by the parties, it is

RECOMMENDED that the Board of Medical Examiners enter a final order finding Dr. Whaley guilty of the act set forth in Section 458.331(1)(c) and imposing the following penalty: suspension of Dr. Whaley's license for one year, followed by five years of probation subject to such conditions as the board may specify. It is further recommended, in accordance with the parties' stipulation, that the imposition of the penalty be stayed until the direct appeal of the criminal conviction has been decided and that, if the criminal conviction is reversed, this case be dismissed.

DONE and ENTERED this 16th day of December, 1985, in Tallahassee, Florida.

DIANE A. GRUBBS

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 16th day of December, 1985.

APPENDIX

Petitioner's and Respondent's

PROPOSED FINDING OF FACT RULING

Paragraph 1 Accepted

Paragraph 2 Accepted

Paragraph 3 Accepted

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel S. Jacobson, Esquire Suite 2902, Independent Square Jacksonville, Florida 32202

William M. Furlow, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NO. 0035663

vs. DOAH CASE NO. 84-3329

LICENSE NO. ME 0025950

WALKER L. WHALEY, M.D.,

Respondent.

/

FINAL ORDER OF THE BOARD OF MEDICAL EXAMINERS

This cause came before the Board of Medical Examiners (Board) pursuant to Section 120.57(1)(b)(9), Florida Statutes, on February 8, 1986, in Orlando, Florida for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by William M. Furlow, Esquire. Respondent was present and represented by Samuel S. Jacobsen, Esquire.

Upon review of the recommended order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of

law.

Upon a complete review of the record in this case, the Board determines

that the penalty recommended by the Hearing Officer be REJECTED as too lenient. The Board finds that the penalty should be increased because of the gravity of the offense of which Respondent has been found guilty. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent's license to practice medicine in Florida shall be suspended for a period of three (3) years or until Respondent completes his probation for the Federal criminal conviction, whichever is longer.

   
   

2. Reinstatement of the license shall be granted only upon a showing by Respondent of ability to practice medicine with reasonable skill and safety, including, but not limited to, completion of continuing medical education.

   
   

3. Upon reinstatement, Respondent's license to practice medicine shall be placed on probation for a period of five (5) years, with terms and conditions to be set by the Board at the time of reinstatement.

This Order takes effect upon filing.

Pursuant to Section 120.59, Florida Statutes the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

DONE AND ORDERED this 22nd day of September, 1986.

BOARD OF MEDICAL EXAMINERS

WILLIAM F. BRUNNER, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been provided by certified mail to WALKER L. WHALEY, M.D., 820 Prudential Drive, Suite 396, Jacksonville, Florida 32207 and Samuel S. Jacobsen, Esquire, Suite 2902, Independent Square, Jacksonville, Florida 32202; by U.S. Mail to Diane A. Grubbs, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to William

M. Furlow, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 at this 22nd day of September, 1986.

Dorothy J. Faircloth Executive Director

Docket for Case No: 84-003329

Orders for Case No: 84-003329