STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-1851

)

CARLOS DE LA FE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on September 23, 1986 in Miami, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Ray Shope, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

FOR RESPONDENT: Robert K. Estes, Esquire

717 Ponce de Leon Boulevard, Suite 232 Coral Gables, Florida 33134

The issue in this case is whether the Respondent violated a lawful order of the Board of Medical Examiners and/or failed to perform a statutory or legal obligation placed upon him as a licensed physician.

PROCEDURAL BACKGROUND

The Administrative Complaint was filed by the Petitioner on April 17, 1986.

By letter dated May 5, 1986, the Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing, pursuant to Section 120.57(1),.Florida Statutes, before a hearing officer appointed by the Division of Administrative Hearings.

This cause came on for final hearing on September 23, 1986. The Petitioner presented the testimony of one witness. In addition, Petitioner's Exhibits 1-3 were offered and duly admitted into evidence. The Respondent testified in his own behalf and submitted Respondent's Exhibits 1 and 2, which were duly admitted into evidence. The Petitioner submitted post- hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact:

1. The Respondent, Carlos De La Fe, M.D., is now and was at all times material to these proceedings, a licensed physician in the State of Florida having been issued License No. ME 0017825.

   
   

2. On January 15, 1985, the Board of Medical Examiners issued a final order wherein disciplinary action was taken against the Respondent's license to practice medicine. The order stated in part that:

   
   

   it is hereby ordered and adjudged that Respondent be reprimanded. Respondent's license to practice medicine in the State of Florida

   shall be placed on probation for a period of three years under the following terms and conditions:

   * * *

   (d) Respondent must take and pass within six months part three of the examination by the National Board of Medical Examiners in

   lieu of the first 50 hours of continuing medical education.

   
   

3. The Respondent applied to take Part III of the National Board Examination but was notified in March, 1985, by the National Board that he was not eligible to sit for the examination. On May 2, 1985, the Respondent informed the Florida Board of Medical Examiners that he was not eligible to take the National Board's test.

   
   

4. At a meeting held by the Board of Medical Examiners on June 1, 1985, the Respondent was present and agreed to take and pass Part II of the Flex examination in lieu of the National Board of Medical Examiner's test which he was previously ordered to take and pass in the Final Order of January 15, 1985. The Flex Examination was scheduled for mid-June, 1985. Although Respondent agreed to the substitution of examinations, he indicated to the Board that he might not be able to adequately prepare for the examination in such a short period of time.

   
   

5. Respondent took Part II of the Flex examination on June 12, 1985, but failed to pass it. Respondent received a score of 71.

   
   

6. Flex examinations are offered every six months in June and December. The Flex Examination was offered in December, 1985 and June, 1986, but the Respondent failed to take either examination. The Respondent attempted to apply to take the December, 1985 examination, but was beyond the registration deadline.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

8. In a proceeding of this type, where an agency seeks to impose discipline upon a licensee in a manner substantially affecting the right of the licensee to practice his profession, the agency must prove the allegations by clear and convincing evidence. See Gans vs. Department of Professional and Occupational Regulation, 397 So.2d 107 (Fla. 3rd DCA 1980). The evidence must be as substantial as the consequences or penalties if the charges alleged are to be proven. See Bowling vs. Department of Insurance 394 So.2d 165 (Fla. 1st DCA 1981).

   
   

9. The Petitioner proved by clear and convincing evidence that Respondent was guilty of violating a lawful order of the Board of Medical Examiners (Section 458.331(1)(x), Florida Statutes) and failing to perform a statutory or legal obligation placed upon a licensed physician (Section 458.331(1)(h), Florida Statutes).

   
   

10. Respondent was required to take and pass Part II of the Flex examination but failed to do so. However, on June 1, 1985, Respondent was only given two weeks in which to prepare for the Flex examination. The Respondent was originally given approximately six months to prepare for the National Board of Medical Examiners examination. In view of the short amount of notice within which Respondent was required to prepare for and take the Flex examination, revocation would be a seriously inappropriate penalty. Nevertheless, the Respondent's failure to apply for, take and pass the Flex examinations which were given subsequent to the June, 1985 examination is inexcusable and requires a penalty sufficiently severe to impress upon the Respondent his statutory duty to comply with lawful orders issued by the administrative board charged with the statutory responsibility of regulating his profession.

RECOMMENDATIONS

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

RECOMMENDED that a Final Order be entered imposing a reprimand, a $500 administrative fine, and suspending Respondent's license to practice medicine unless and until he successfully passes the Flex Examination Part II.

DONE and ORDERED this 20th day of November, 1986 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32304 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 20th of November, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1851

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact submitted by the Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Rejected as subordinate.

4. Adopted in Finding of Fact 2.

5. Adopted in Finding of Fact 3.

6. Adopted in Finding of Fact 3.

7. Adopted in Finding of Fact 4.

8. Adopted in Finding of Fact 4.

9. Adopted in Finding of Fact 5.

10. Adopted in Finding of Fact 6.

11. Adopted in Finding of Fact 6.

Rulings on Proposed Findings of Fact Submitted by the Respondent (None submitted)

COPIES FURNISHED:

Ray Shope, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Robert K. Estes, Esquire 717 Ponce de Leon Blvd. Suite 232

Coral Gables, Florida 33134

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings E. Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 3233

Dorothy Faircloth Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001851

Orders for Case No: 86-001851