STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION (BOARD OF MEDICINE), )

)

Petitioner, )

)

vs. ) Case No. 85-3926

)

DAVID K. BUCKLEY, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 30, 1987, at Tallahassee, Florida, before Michael

M. Parrish, a duly designated Hearing Officer of the Department of Administrative Hearings. At the hearing the parties were represented as follow:

For Petitioner: Ray Shope, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: (No appearance)

ISSUES

This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of Respondent's alleged violation of Section 458.331(1)(c), Florida Statutes, in that he has been convicted or found guilty of a crime which directly relates to the practice of medicine or to the ability to practice medicine.

BACKGROUND AND INTRODUCTION

By Administrative Complaint signed on October 3, 1985, the Respondent was charged with a violation of Section 458.331(1)(c), Florida Statutes. Specifically, the Administrative Complaint alleges that the Respondent has been

convicted of conspiracy to possess with intent to distribute a large quantity of marijuana.

Approximately 20 minutes before the commencement of the hearing, the Hearing Officer received a telephone call from a man who identified himself as Frances K. Buckley. Mr. Frances

1. Buckley stated that he is an attorney in Ft. Lauderdale, Florida. and that he is the father of the Respondent in this case. Attorney Buckley advised the Hearing Officer that his son was still incarcerated at Danbury, that an appeal of his son's conviction was pending, that there had been no disposition of the appeal, and that he expected his son to be released from prison sometime within the next three months. Attorney Buckley advised the Hearing Officer that he was providing the foregoing information at the request of his son. Attorney Buckley did not purport to be acting as attorney for his son and did not make any motions.

   
   

   The substance of the foregoing conversation was made a part of the hearing record, whereupon the Department was asked what course of action it preferred. The Department having expressed a preference for going forward, and there being no motion for continuance, the formal hearing was conducted at the time and place set forth in the Second Notice of Hearing issued on December 19, 1986.

   
   

   At the hearing the Petitioner presented the testimony of one witness and offered several exhibits in evidence, all of which were received. A transcript of the proceedings at hearing was filed on April 14, 1987, and by memorandum issued April 15, 1987, all parties were reminded that they had until April 24, 1987, within which to file their post-hearing submissions to the Hearing Officer. on April 22, 1987, the Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all of the findings of fact proposed by the Petitioner has been included in the findings of fact in this recommended order. By letter dated April 22, 1987, and received on April 27, 1987, the Respondent moved for an enlargement of time and for a new hearing. By order issued May 1, 1987, the motion for new hearing was denied and the motion for enlargement of time was granted to the extent of allowing the parties until May 15, 1987, within which to file proposed recommended orders and/or memorandums of law. On May 15, 1987, the Respondent filed a motion seeking reconsideration of the order of May 1, 1987, and seeking a continuance of further proceedings in this case until September 15, 1987. The merits of the last mentioned motion are addressed in the

   conclusions of law hereinafter. The Respondent has not filed any proposed findings of fact.

   
   

   FINDINGS OF FACT

   
   

   Based on the testimony of the witness and on the exhibits received in evidence, I make the following findings of fact.

   
   

   1. The Respondent, David K. Buckley, is a licensed physician in the state of Florida, having been issued license number ME 0021232, and was so licensed at all times material to this case.

      
      

   2. On June 7, 1985, in the U.S., District Court for the District of Maine, the Respondent pled guilty to and was convicted of the offense of conspiracy to possess with intent to distribute a large quantity of marijuana, in violation of Title

      21 U.S. Code, Section 846. As a result of that conviction, the Respondent was sentenced to imprisonment for a period of five years.

      
      

   3. The crime described above directly relates to the practice of medicine and to the ability to practice medicine. The ability to prescribe, administer, and dispense controlled substance in a lawful manner is an important aspect of the practice of medicine. Conviction of the crime described above is

      indicative of an inability to prescribe, administer, and dispense controlled substances in a lawful manner. An inability to lawfully prescribe, administer, and dispense controlled substances directly relates to the practice of medicine and to the ability to practice medicine.

      
      

      CONCLUSIONS OF LAW

      
      

      Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

      
      

   4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case.

      
      

   5. On the authority of State ex ref. Weathers v. Davis,

      196 So.487 (Fla. 1940), it is arguable that upon timely motion, the Respondent would have been entitled to a continuance of the formal hearing in this case until such time as he is released

      from federal prison. But no such arguments need be addressed here because the Respondent did not timely move for a continuance. The first request for continuance of the formal hearing was not filed until several weeks after the hearing. Accordingly, the Respondent's May 15, 1987, motion seeking reconsideration of the May 1, 1987, order and seeking a continuance of further proceedings in this case until September 15, 1987, is hereby denied.

      
      

   6. Section 458.331(1)(c), Florida Statutes, provides that the following is one of the grounds for which disciplinary action may be taken:

      
      

      (c) Being 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. Any plea of nolo contendre shall be considered a conviction for purposes of this chapter.

      
      

   7. The application of the foregoing statutory provision was addressed as follows in Greenwald v. Department of Professional Regulation, 501 So.2d 740 (Fla. 3d DCA 1987):

      
      

      In our view Dr. Greenwald's undertaking to a end bitter marriage dissolution problem by soliciting someone to murder his ex-wife evidences warped judgment and disregard for human life--the antithesis of that which is required and expected of physicians.

      
      

      With the foregoing observation the court affirmed the Board order finding Dr. Greenwald guilty of a violation of Section 458.331(1)(c), Florida Statutes, on the basis of his having been found guilty of the crime of soliciting the murder of his ex- wife.

      
      

   8. So the Greenwald case, supra, the court also cited with approval the decision in Rush v. Department of Professional Regulation, Board of Podiatrv, 448 So.2d 26 (Fla. 1st DCA 1984). On facts remarkably similar to those in the instant case, the licensee in Rush was found by the Board of Podiatry to have violated Section 461.03(1)(c), Florida Statutes (1981), which statutory provision authorized disciplinary action against podiatrists for grounds identical to those set forth in Section 458.331(1)(c), Florida Statutes. The Rush court affirmed the

      order of the Board of Podiatry that a conviction in federal court of conspiracy to possess and import marijuana was a conviction of a crime " . . . . which directly related to the practice of podiatry or the ability to practice podiatry." In so doing the Rush court stated:

      
      

      A podiatrist is one of six categories of licensed professionals allowed to prescribe, administer, and dispense controlled substances by the State of Florida. Section 893.02(l4), Florida Statutes (1981). The Legislature has invested a trust and confidence in these six categories of licensees by permitting them to dispense drugs which have a high potential for abuse. The actions of Dr. Rush, which culminated in his conviction, constitute a breach of that trust and confidence which the people, through the Legislature, have placed in him. Dr. Rush's conduct shows a lack of honesty, integrity, and judgment, and an unwillingness to abide by the Laws of the State of Florida which cannot be tolerated of a professional licensed to dispense dangerous drugs.

      
      

      . . . A conviction for a crime, such as importing marijuana, which presents a danger to the public welfare will be adequate basis for disciplinary action to be taken against a practitioner.

      
      

   9. The above-quoted comments from the Rush decision are equally applicable to a medical doctor who is convicted of similar crimes. Accordingly, it is concluded that the Respondent in this case is guilty of a violation of Section 458.331(1)(c), Florida Statutes.

      
      

   10. In the Rush case, supra, the penalty imposed by the Board of Podiatry and affirmed by the court was an order "suspending appellant's license to practice for six months and placing appellant on probation for three years." The Board of Medicine appears to be of the view that such a penalty is too lenient. See Department of Professional Regulation vs. Walker L. Whaley M.D., 8 FALR 6038 (Final Order entered September 22, 1986), in which the Board of Medicine imposed a penalty of three years suspension and five years probation based on a criminal

       conviction very similar to the convictions in Rush and in the instant case. Absent some articulated basis for a change in Board policy, none of which is present in the record in this case, in the interest of consistency the Board of Medicine should follow its precedent in Whaley, supra.

       
       

       RECOMMENDATION

       
       

       On the basis of all of the foregoing, it is recommended that the Board of Medicine enter a final order in this case to the following effect:

       
       

       1. Concluding that on the basis of the facts found above the Respondent is guilty of violating Section 45.331(1) (c), Florida Statutes, and

          
          

       2. Imposing a penalty of a suspension of Respondent's license for a period of three years, with reinstatement of the license only upon a showing by Respondent of ability to practice medicine with reasonable skill and safety, and upon reinstatement place Respondent's license on probation for a period of five years.

DONE AND ENTERED this 21st day of May, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 21st day of May, 1987.

COPIES FURNISHED:

Ray Shope, Esquire Department of Professional

Regulation

3130 North Monroe Street Tallahassee, Florida 32399-075O

David K. Buckley, M.D. 102311-036

Danbury Federal Correctional Institution Pembroke Station

Danbury, Connecticut 06811

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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=

AGENCY FINAL ORDER

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

=

BEFORE THE BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL

REGULATION,

Petitioner,

vs. DPR CASE NO. 0060630

DOAH CASE NO. 85-3926 DAVID K. BUCKLEY, M.D., LICENSE NO. ME 0021232

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9., Florida Statutes on August 1, 1987, 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 Bruce D. Lamb, Esquire. Respondent was not present or represented. Notice of the hearing was sent to his last known address.

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 increased. The Board finds that the offense of conviction exposed the public to great injury or potential of injury was severe. See Rule 21M-20.001, Florida Administrative Code. The offense involved the importation of 4,500 pounds of marijuana. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

Respondent's license to practice medicine in the State of Florida is REVOKED.

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.

This order takes effect upon filing.

DONE AND ORDERED this 7th day of August, 1987.

BOARD OF MEDICINE

EMILIO ECHEVARRIA, 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 David K. Buckley, M.D., 1109 East Las Olas Boulevard, Ft.

Lauderdale, Florida 33301 and Dismas House CTC, 141 N.W. 1st Avenue, P.O. Box 35, Dania, Florida; by U. S. Mail to Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to Ray Shope, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399- 0750 at or before 5:00 p.m., this 11 day of August 1987.

Dorothy Faircloth Executive Director

Docket for Case No: 85-003926

Orders for Case No: 85-003926