STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) DOAH CASE No. 86-0618

) DPR CASE No. 0060674

BRICCIO D. VALDEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: William M. Furlow, Esquire

Department of Professional Regulation Tallahassee, Florida

For Respondent: Henry M. Coxe, III, Esquire

Jacksonville, Florida

This is a license discipline case in which the Department of Professional Regulation, by Administrative Complaint signed on January 15, 1986, has charged the Respondent with violation of several specified statutory provisions by reason of Respondent's having continued to engage in the practice of medicine during the first few weeks immediately following the issuance of a Board order suspending his license to practice medicine for three years. The essence of Respondent's defense to these charges is that he was acting in good faith on the basis of advice from his legal counsel.

The Respondent filed a Motion To Dismiss in which he Contended that a cause of this nature cannot be prosecuted by Administrative Complaint if there has been reliance upon the advice of legal counsel when the advice of counsel relates solely to a procedural matter. The Motion To Dismiss was denied by order issued on June 16, 1986, which order included the following:

Reliance on the advice of counsel is not a complete defense to a violation of the type charged in this case. Such reliance is, nevertheless, a matter to be considered in mitigation of such a violation and, depending upon the facts and circumstances of a particular case, may even be sufficient to support a conclusion that the imposition of a penalty is not warranted. By way of clarification it is noted that this order merely denies the Motion To Dismiss; it does not purport to assess the extent of mitigation applicable in this case.

Following the issuance of the order of June 16, 1986, quoted above, the parties agreed to waive a formal hearing in this case and to submit the case to the Hearing Officer for preparation of a Recommended Order based on the stipulated facts which had been earlier set forth in the Respondent's Motion To Dismiss. The parties also waived their right to file proposed recommended orders, but did request an opportunity to present oral argument to the Hearing Officer. The oral argument was heard via telephone conference call on September 8, 1986.

FINDINGS OF FACT

The findings of fact stipulated to by the parties are as follows:

1. The Respondent's license was suspended for a period of three years by Final Order of the Board of Medical Examiners filed on or about June 25, 1985.

   
   

2. The Respondent filed a timely Notice of Appeal of the foregoing Final Order.

   
   

3. The Respondent filed a Motion to Stay the Final Order with the Board of Medical Examiners, through appellate counsel, but said motion was not ruled upon by the Board of Medical Examiners at any time pertinent to the dates related to the Administrative Complaint.

   
   

4. No petition for stay was filed by the Respondent until August 6, 1985, with the appellate court having jurisdiction of the direct appeal, when said motion was filed by appellate counsel.

   
   

5. The District Court of Appeal, First District, entered a temporary stay of the Final Order of the Board of Medical Examiners on August 6, 1985, but dissolved the stay on August 9, 1995, upon written response from the Department of Professional Regulation.

   
   

6. No other stay was in effect at any time pertinent to the times material to the matters raised in the Administrative Complaint filed herein.

   
   

7. The Respondent continued to practice medicine subsequent to the filing of the Motion to Stay filed with the Board of Medical Examiners until contacted in person by investigators of the Department of Professional Regulation who informed the Respondent, on August 12, 1985, that no stay of the Final Order was in effect. At that point, the Respondent immediately surrendered his medical license to the investigators of the Department of Professional Regulation and informed said investigators that the investigators should contact his appellate Counsel because of the "Confusion."

   
   

8. The Respondent believed, and was specifically advised by appellate Counsel, that the Final Order of the Board of Medical Examiners filed June 25, 1985, was stayed automatically by the District Court of Appeal, First District, notwithstanding the fact that the only stay entered by the District Court of Appeal, First District, was from August 6 to August 9, 1985. Not only was the Respondent advised by appellate counsel orally that such a stay was automatically effected by the filing of the Notice of Appeal with the District Court of Appeal, First District, but appellate counsel provided written confirmation of the alleged existence of such a stay to Jacksonville hospitals providing medical privileges to the Respondent. An example of such written confirmation is a letter dated July 30, 1985, to the President, Board of Trustees of St. Vincent's Medical Center advising St. Vincent's Medical Center

   that the Final Order of the Board of Medical Examiners was automatically stayed by operation of Section 120.68(3), Florida Statutes. In that letter, appellate counsel not only advised St. Vincent's Medical Center of the existence of an alleged automatic stay, but copied the Respondent with said advice, confirming to the Respondent that the Final Order of the Board of Medical Examiners had in fact been stayed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

10. Section 458.327(1)(a), Florida Statutes, reads as follows, in pertinent part:

    
    

    1. Each of the following acts constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:

       1. The practice of medicine or an attempt to practice medicine without an active license.

          
          

11. Section 458.331(1)(h) and (x), Florida Statutes reads as follows in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       1. Failing to perform any statutory or legal obligation placed upon a licensed physician.

       2. Violating 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 or failing to comply with a lawfully issued subpoena of the department.

       
       

12. The Respondent's act of continuing to practice medicine after the Board of Medical Examiners had issued an order suspending his license for three years is a violation of Section 458.327(1)(a), Florida Statutes, because it clearly constitutes the practice of medicine without an active license. The Respondent's act of continuing to practice medicine after the Board of Medical Examiners had issued an order suspending his license for three years is also a violation of Section 458.331(1)(x), Florida Statutes, because such act was in clear violation of Section 458.327(1)(a), Florida Statutes and also in clear violation of a lawful Board order previously entered in a disciplinary hearing. The Respondent's act of continuing to practice medicine after issuance of the order suspending his license was not a violation of Section 458.331(1)(h), Florida Statutes, because at the time of such act the Respondent was not a licensed physician and, a fortiori, he was not subject to any statutory or legal obligation placed upon a "licensed physician."

13. Even though the Respondent's actions described above constitute clear violations of Sections 458.327(1)(a) and 458.331(1)(x), Florida Statutes, those violations did not result from any blatant or willful disregard of the statutory prohibitions. To the contrary, such violations might best be described as "accidental" violations, or as "unwitting" violations, because at the time of the violations the Respondent reasonably believed, albeit erroneously, that it was proper for him to continue to practice medicine during the pendency of the appeal of the Board's suspension order. Respondent's reasonable belief in this regard was based on clear and unequivocal oral and written legal advice to the effect that the Board's suspension order was stayed during the pendency of the appeal of that order. The legal advice happens to have been wrong, but it was, nevertheless, plausible legal advice, the accuracy of which the Respondent had no reason to doubt or question until he was visited by investigators of the Department of Professional Regulation on August 12, 1985.

    
    

14. Because the Respondent's actions which resulted in the subject violations were taken in good faith reliance upon erroneous advice of counsel, it hardly seems fair that he should be subject to additional punishment for his unwitting violations. But it also hardly seems fair that the Respondent should be able to profit from the fruits of the erroneous legal advice. On the basis of the erroneous legal advice, the Respondent continued to practice medicine during the first 48 days following the entry of the order suspending his license for three years. During 4 of those days such practice was lawful as a result of a temporary stay issued by the District Court of Appeal. Thus, the Respondent, on the basis of erroneous legal advice, enjoyed 44 days of medical practice to which he was not lawfully entitled. The most appropriate remedy in this case is to restore, to the extent possible, the status quo ante. Accordingly, on the basis of all of the foregoing, it is

RECOMMENDED:

That the Board of Medical Examiners enter a Final Order in this case to the following effect:

1. Dismissing so much of the Administrative Complaint as charges a violation of

   Section 458.331(1)(h), Florida Statutes;

2. Finding the Respondent guilty of having violated Sections 458.327(1)(a) and 458.331(1)(x), Florida Statutes;

3. Concluding that such violations were unintentional violations based on a good faith reliance on legal advice; and

4. Imposing a penalty of a 44 (forty-four) day suspension of Respondent's license,

such suspension to run consecutive to the license suspension previously imposed on the Respondent on or about June 25, 1985.

DONE AND ORDERED this 10th day of September, 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 10th day of September, 1986.

COPIES FURNISHED:

William M. Furlow, Esquire Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Henry M. Coxe, III, Esquire

424 E. Monroe Street Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

BEFORE THE BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL

REGULATION,

Petitioner,

Respondent.

/

FINAL ORDER OF THE BOARD OF MEDICAL EXAMINERS

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)(9), Florida Statutes on December 6, 1986, in Tampa, 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, who was represented by Henry M. Coxe, III, was present and testified at the hearing.

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

   
   

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

   
   

4. The conclusions of law in the Recommended Order of the Hearing Officer are approved and adopted with the exception of the last sentence of paragraph four, which states, "The Respondent's act of continuing to practice medicine after issuance of the order suspending his license was not a violation of Section 458.331(1)(h), Florida Statutes, because at the time of such act the Respondent was not a licensed physician and, a fortiori, he was not subject to any statutory or legal obligation placed upon a `licensed physician.'" The

   Board finds that a physician whose license is suspended is still a licensed physician and is, therefore, still subject to any statutory or legal obligation placed upon a "licensed physician."

   
   

5. Accordingly, by continuing to practice medicine while his license was suspended, Respondent was in violation of Sections 458.331(1)(h), Florida Statutes.

   
   

6. There is competent substantial evidence to support the Board's 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 adopted. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED:

1. That Respondent is guilty of having violated Section 458.331(1)(h), Florida Statutes.

   
   

2. That Respondent is guilty of having violated Sections 458.327(1)(a) and 458.331(1)(s), Florida Statutes.

   
   

3. Such violations were unintentional violations based on a good faith reliance on legal advice.

   
   

4. Respondent's license to practice medicine shall be suspended for a period of 44 days, such suspension to run consecutive to the license suspension previously imposed on the Respondent on or about June 25, 1985.

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 or 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 20th day of February , 1987.

BOARD OF MEDICINE

WILLIAM F. BRUNNER, M.D. CHAIRMAN

Docket for Case No: 86-000618

Orders for Case No: 86-000618