STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-6468

)

WILFRED MITTELSTADT, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 20, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For petitioner: David G. Pius, Esquire

Senior Attorney

Department of professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0972

For Respondent: Karen Coolman Amlong, Esquire

Amlong & Amlong, P.A.

101 Northeast Third Avenue Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The ultimate issue for determination at hearing was whether disciplinary action should be taken against Respondent's license to practice osteopathy for the reasons alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on December 1, 1988. The Complaint alleged inter alia that on or about September 7, 1987, Respondent: (1) refused to discuss the terms of his probation and denied Petitioner access to inspection of Respondent's office records; (2) failed to make available his office records for inspection upon request by the Department of Professional Regulation consequently violating the terms of Respondent's probationary status; and (3) wilfully and intentionally failed and refused to produce Respondent's office records upon official request of Petitioner in direct violation of an order of the Board of Osteopathic Physicians. Such action by Respondent allegedly conflicted with the terms of a lawful order of the Board of Osteopathic Medical Examiners (the "Board"), previously entered in Case Number 84-2844 on November 7, 1986, 1/ in violation of Subsection 459.015(1)(cc).

Respondent requested a formal administrative hearing on or about December 27, 1988, and the matter was referred to the Division of Administrative Hearings on December 28, 1988, for assignment of a hearing officer. By Notice of Hearing dated February 9, 1989, a formal hearing was scheduled for March 23, 1989. Respondent's Motion for Continuance was granted on March 23, 1989. By Notice of Hearing dated May 8, 1989, the formal hearing was rescheduled for June 20, 1989.

At the formal hearing, petitioner presented 5 exhibits to be admitted into evidence. Petitioner's Composite Exhibits 1 and 2 were admitted without objection. Petitioner's Exhibits 4 and 5 were admitted over objection. Respondent objected to the admission of Petitioner's Exhibit 3 on the ground that it lacked authenticity. Ruling on that objection was reserved for disposition in this Recommended Order.

Petitioner submitted a written Motion to Take Official Recognition of Osteopathic Disciplinary Guidelines in Florida Administrative Rule 2IR-19 which was granted without objection. Petitioner also moved ore tenus that official recognition be taken of Chapters 20, 120, and 459, Florida Statutes, which was granted without objection.

Petitioner presented the testimony of James Golden, Investigator, Bureau of Investigative Service, Department of Professional Regulation, and Jody Fischer, Investigation Specialist II, Department of Professional Regulation. Respondent objected to the admission of testimony by Fischer on the ground that such testimony concerned events not alleged in the Administrative Complaint. Fischer's testimony was admitted over Respondent's objection. The parties stipulated to a standing

objection by Respondent as to the authenticity of evidence of separate telephone conversations in which Golden and Fischer placed telephone calls to a declarant who identified himself as Wilfred Mittelstadt. Ruling on the standing objection was reserved for disposition in this Recommended Order.

Respondent moved ore tenus to dismiss the Administrative Complaint for failure to state a cause of action on the ground that the Final Order entered by the Board in Case Number 84-2844 unlawfully prohibited Respondent from practicing osteopathy.

Citing the opinion of the Florida Supreme Court in State Board of Medical Examiners of Florida v. Rogers, 387 So.2d 937 (Fla. 1980) for the proposition that the State can not prohibit an osteopath from practicing chelation therapy, Respondent argued that there can be no violation of an unlawful order. Ruling on Respondent's Motion to Dismiss was reserved for disposition in this Recommended Order.

Respondent presented one exhibit which was admitted without objection. Respondent called no witnesses and did not testify in his own behalf. The rule was invoked. Neither of the parties designated a principal representative to remain in the hearing room during the formal hearing.

A transcript was ordered, and it was filed on July 7, 1989.

Proposed Findings were due on July 17, 1989, and were filed on July 20, 1989, pursuant to a stipulation among the parties and approved by the undersigned. 2/ Proposed Findings submitted by the parties are addressed in the appendix to this Recommended Order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent has been licensed to practice osteopathy under the laws of the State of Florida pursuant to License Number OS 0001510.

   
   

2. Petitioner is the state agency empowered by Chapters 20, 455, and 459, Florida Statutes, to regulate the practice of osteopathy within the State of Florida.

   
   

3. The addresses listed by Respondent on the copies of his renewal cards for his license in Petitioner's Composite Exhibit 1 include the address of 76 East McNab Road, Pompano Beach, Florida, 33060.

4. Respondent and Petitioner were parties to a prior disciplinary proceeding. Department of Professional Regulation, Board of Osteopathic Medical Examiners v. Wilfred W. Mittelstadt, Case No. 84-2844 (DOAH 1986). The Final Order of the Board in the prior disciplinary proceeding was entered on November 7, 1986, filed on November 20, 1986, and affirmed per curiam by the First District Court of Appeal on April 27, 1988. Mittelstadt v. Department of Professional Regulation, Board of Osteopathic Medical Examiners, 528 So.2d 1188 (Fla. 1st DCA 1988).

   
   

5. The Final Order in the prior disciplinary proceeding provides inter alia that during a 3_ year period from the date of the Final Order 3/ Respondent ". . . shall have his office records subjected to random inspections by the Department of Professional Regulation." The Final Order does not specify the purpose of the random inspections. Instead, the Final Order provides as an "additional part of the penalty" that Respondent is prohibited from the use of chelation therapy for the treatment of rheumatoid arthritis, copper poisoning, and vascular disease for a

   3 year period. The random inspection of office records, therefore, is separate and apart from the prohibition of practicing chelation therapy for the purposes prescribed in the Final Order.

   
   

6. On August 17, 1987, DPR Investigator Golden received a Disciplinary Enforcement Request from the Board. The Board requested Investigator Golden to inspect Respondent's office records if the Respondent was still in practice. The Board's request stated that its Final Order prohibited Respondent from using chelation therapy, that Respondent must appear before the Board with proof of CMEs, 4/ and further requested Investigator Golden to inform the Board if Respondent was still in practice.

   
   

7. Investigator Golden spoke with Respondent by telephone on September 8, 1987. Investigator Golden telephoned Respondent's office on September 8, 1987, and asked to speak with Dr. Mittelstadt. A man subsequently identified himself to Investigator Golden as Dr. Mittelstadt. The accuracy of the telephone system, the absence of motive to falsify, and the lack of opportunity for premeditated fraud all support the conclusion that self-identification by the person being called is reliable authentication of the speaker's voice.

   
   

8. The voice in the telephone conversation on September 8, 1987, was that of Respondent. Investigator Golden was sufficiently familiar with Respondent to identify the voice in the telephone conversation on September 8, 1987, as that of Dr. Mittelstadt. Investigator Golden based his voice identification on a face-to-face conversation with Dr. Mittelstadt prior to the telephone conversation on September 8, 1987, and on hearing the

   Respondent speak on the day of the formal hearing outside the hearing room. In addition, Investigator Golden physically identified Respondent under oath at the hearing.

   
   

9. Respondent had actual or constructive knowledge of the terms of his probation. Respondent was a party to the prior disciplinary proceeding in which the Final Order was entered on November 7, 1986. Respondent filed a Motion to Stay the conditions of suspension and probation which was denied by the First District Court of Appeal. Wilfred W. Mittelstadt, D.O. v. Department of Professional Regulation, Case No. BR-150 (Fla. 1st DCA January 23, 1987). Respondent appealed the Final Order and the Final Order was affirmed per curiam. Mittelstadt v. Department of Professional Regulation, Board of Osteopathic Medical Examiners, 528 So.2d 1188 (Fla. 1st DCA 1988). Finally, Petitioner's Composite Exhibit 2 and Petitioner's Exhibit 3 establish a rebuttable presumption that the Final Order was delivered to Respondent on November 25, 1986. That presumption was not rebutted by testimony from the Respondent.

   
   

10. The testimony of Investigator Golden demonstrates that the purpose of the Board's Disciplinary Enforcement Request on August 17, 1987, included inspection of office records. Investigator Golden's testimony also establishes that it was one of his purposes in making the telephone call to Dr. Mittelstadt on September 8, 1987, to request inspection of Respondent's office records.

    
    

11. No evidence was presented that Investigator Golden requested access to Respondent's office records, that Respondent denied such access, that Respondent failed to make available his office records for inspection upon request by the Petitioner, or that Respondent willfully and intentionally failed and refused to produce his office records upon official request of the Petitioner. The testimony of Investigator Fischer is irrelevant to the allegation in the Administrative Complaint that Respondent refused to allow inspection of his office records on or about September 7, 1987. Further, the record does not establish that a request to inspect Respondent's office records was ever made by Investigator Golden. The Transcript at page 24 reveals the following facts:

    
    

    1. I said, "This is Jim Golden, investigator with DPR, Department of Professional Regulation."

       Q. All right.

       A. And I said "I'm calling to set up an appointment to come to your office and sit down with you in regards to the

       terms of your probation, disciplinary action."

       Do you want to just--

       Q. What kind of response did you get?

       A. Okay. Dr. Mittelstadt refused to discuss his probation terms and even disavowed ever being disciplined by the Board stating, "I have patients to see," and hung up.

       Q. What did you do in response to that?

       A. I advised my supervisor and then initiated a supplemental report, probation report, and forwarded it with a copy of the DER to the Board.

       Did you make further attempts to review his records yourself?

       A. No, sir.

       
       

       There is no evidence that Petitioner made any other request to inspect Respondent's records on or about September 7, 1987, as alleged in the Administrative Complaint. Nor is there any evidence that Respondent refused such a request.

       
       

       CONCLUSIONS OF LAW

       
       

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

13. The burden of proof is on Petitioner to prove the allegations in the Administrative Complaint by clear and convincing evidence. Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Associated Home Health Care Agency, Inc. v. State of Florida Department of Health and Rehabilitative Services, 453 So.2d 104 (Fla. 1st DCA 1984); Snell, M.D. v. Department of Professional Regulation, 454 So.2d 795 (Fla. 3d DCA 1984); Robinson v. Florida Board of Dentistry,

    447 So.2d 930 (Fla. 3d DCA 1984); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Walker v. Florida State Board of Optometry, 322 So.2d 612 (Fla. 3d DCA 1975).

    
    

14. The telephone call placed by Fischer concerned events which took place in March and April 1988, and which were not alleged in the Administrative Complaint. Her testimony is not dispositive of any matters at issue in this case and is not considered by the undersigned in this Recommended Order. A ruling on Respondent's standing objection with respect to Fischer's testimony, therefore, is unnecessary.

15. Investigator Golden testified that he placed a telephone call to the office number of the Respondent and talked with a person identifying himself as Dr. Mittelstadt. Proof of proper placing of a telephone call plus self-identification of the person called constitutes sufficient proof of authenticity to admit the substance of the telephone conversation. Palos v. United States,

    416 F.2d 438 (5th Cir. 1969); United States v. Benjamin, 328 F.2d 854 (2d Cir. 1964); Everette v. D.O. Briggs Lumber Co., 110 S.E. 2d 288 (N.C. 1959).

    
    

16. Respondent cites Killingsworth v. State, 105 So. 834, 836 (Fla. 1925) as authority for his standing objection. In Killingsworth, however, the Florida Supreme Court expressly rejected the contention that testimony of a telephone conversation is inadmissible because the witness could not know "who was at the other end of the phone." Instead, the Court held that recognition of persons by their voices is a common occurrence and is often the only means of identification.

    
    

17. Respondent also cites Byer v. Florida Real Estate Commission, 380 So.2d 511 (Fla. 3d DCA 1980), as authority for his standing objection. The facts in Byer are distinguishable from those in this proceeding. In Byer, self-identification was made by the person placing the telephone call. The Third District Court of Appeal determined that such identification was insufficient to establish the authenticity of the caller. In this proceeding, self-identification was made by the person being called at the office telephone number of the Respondent. Accordingly, Respondent's standing objection as to authenticity of the telephone conversation between Investigator Golden and a declarant identifying himself as Dr. Mittelstadt is overruled.

    
    

18. The voice identification to which Investigator Golden testified at the formal hearing satisfied Petitioner's burden of proof that the person Investigator Golden spoke with on the telephone on September 8, 1987, was Dr. Mittelstadt. A witness may testify that he recognizes a voice which has been electronically reproduced by telephone if a foundation is laid to indicate the circumstances whereby the witness acquired familiarity with the reproduced voice. Worley v. State, 263 So.2d 613 (Fla. 4th DCA 1972). The requisite familiarity with the speaker's voice may be acquired after or before the particular speaking which is the subject of the identification. Weinshenker

    v. State, 223 So.2d 561 (Fla. 3d DCA 1969) cert. denied 396 U.S. 973 (1969); Simon v. State, 209 So.2d 682, (Fla. 3d DCA 1968); Cason v. State, 211 So.2d 604 (Fla. 2d DCA 1968). Investigator Golden based his voice identification on a face-to-face conversation with Dr. Mittelstadt prior to the telephone conversation on September 8, 1987, and on hearing the Respondent

    speak on the day of the formal hearing outside the hearing room. In Weinshenker, the Florida Supreme Court held that a person identified solely by means of voice recognition met the state's burden to the exclusion of every reasonable doubt.

    
    

19. Petitioner's Exhibit 3 consists of a copy of each side of the Receipt for Certified Mail number P 579 343 580 dated November 20, 1986, and addressed to W.W. Mittelstadt, D.O., 76 East McNab Road, Pompano Beach, Florida 33060. The return receipt is signed and the date of delivery is November 25, 1986. Delivery was not restricted to the addressee or his authorized agent and no evidence was admitted establishing the authenticity of the signature on the return receipt. Therefore, Petitioner's Exhibit

    3 is inadmissible for the purpose of proving receipt by Respondent.

    
    

20. Petitioner's Exhibit 3 is admissible for the purpose of creating a rebuttable presumption of receipt. Petitioner's Composite Exhibit 2 includes an original Certification by the Administrative Assistant to the Official Custodian of the records of the Board. The text of the Certification provides that Receipt for Certified Mail number P 579 343 580 was attached to the Final Order in Case Number 84-2844. Petitioner's Composite Exhibit 2 was admitted without objection by Respondent. Mail properly addressed, stamped and mailed creates a rebuttable presumption of receipt and proof of general office practices satisfies the requirement of due mailing. Brown v. Giffen Industries, Inc., 281 So.2d 897, 898 (Fla. 1973); Progressive American Ins. Co. v. Kurtz, 518 So.2d 1339 (Fla. 5th DCA 1987); Home Insurance Co. v. C & G Sporting Goods, Inc., 453 So.2d 121 (Fla. 1st DCA 1984); Berwick v. Prudential Property and Casualty Insurance Co., 436 So.2d 239 (Fla. 3d DCA 1983); Budget Luxury Inns, Inc. v. Boston, 407 So.2d 997 (Fla. 1st DCA 1982).

    
    

21. Respondent's ore tenus motion to dismiss is denied. The Final Order of the Board in Case Number 84-2844 was affirmed per curiam by the First District Court of Appeal. Mittelstadt v. Department of professional Regulation, Board of Osteopathic Medical Examiners, 528 So.2d 1188 (Fla. 1st DCA 1988). The issue addressed by Respondent's ore tenus motion to dismiss was raised by Respondent in his prior appeal. Respondent is collaterally estopped from re-litigating matters in issue in a prior judgment between the same parties in a different cause of action. /5

    
    

22. Respondent's ore tenus motion to dismiss which was made in closing argument should be denied. In support of that motion, Respondent argued that Petitioner had proved up a violation of probation on September 8, 1987, but had failed to prove up a violation on September 7, 1987. The Administrative Complaint, however, alleges a violation which occurred "on or about September

    7, 1987." Such pleading is sufficient notice to Respondent that the violation may have actually occurred a day after the date stated in the Administrative Complaint.

    
    

23. Petitioner failed to prove that a violation of Respondent's probation occurred on or about September 7, 1987. The evidence establishes that the purposes of the Board's Disciplinary Enforcement Request to Investigator Golden on August 17, 1987, included the purpose of inspecting Respondent's office records. The evidence also establishes that Investigator Golden intended to request an inspection of Respondent's office records during the telephone conversation on September 8, 1987. However,

there is no evidence that the Petitioner ever requested inspection of Respondent's office records or that Respondent refused such a request on September 8, 1987. Evidence of subsequent contact between the parties is not probative of the allegations in the Administrative Complaint.

RECOMMENDATION

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

RECOMMENDED that Respondent be found not guilty of violating the terms of his probation on or about September 7, 1987, as alleged in the Administrative Complaint.

DONE and ENTERED this 8th day of August 1989, in Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of August 1989.

ENDNOTES

1/ The Board's Order was filed on November 20, 1989. See Petitioner's Proposed Recommended Order at para. 3 of the Proposed Findings of Fact.

2/ Petitioner's Proposed Recommended Order omitted the page containing Proposed Findings of Fact beyond para. 15, if any, and Proposed Conclusions of Law before para 3.

3/ The 3_ year period is comprised of a 6 month suspension plus a

3 year probation. The Final Order was entered on November 7, 1986, and filed on November 20, 1986. The Final Order is silent with respect to the beginning date for the 3_ year period. In any event, the 3_ year period could not expire before November 7, 1989.

4/ Continuing medical education.

5/ As a bar to re-litigating an issue that has already been tried between the same parties, collateral estoppel must be affirmatively plead. It is specifically found that the requirement of affirmative pleading was satisfied by petitioner's oral argument in opposition to Respondent's ore tenus motion to dismiss. See Transcript at 8-11.

APPENDIX

Case Number 88-6468

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-4. Included in Findings 1, 2, 4, and 5

5-11. Included in Findings 6-8

1. Included in Conclusion of Law 2

2. Included in Findings 7 and 8

3. Included in Finding 7 and 8

4. Included in Findings 7 and 8

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-4. Included in Findings 1, 2, 4 and 5

1. Included in Finding 11

2. Included in Finding 10

3. Included in Finding 6

4. Included in Finding 7

5. Rejected for the reasons stated in Findings 7 and 8 and Conclusion of Law 7

6. Included in Finding 8

7. Rejected for the reasons stated in Conclusion of Law 7

8. Rejected as irrelevant

9. Included in Finding 11

10. Included in Finding 11

11. Included in Conclusions of Law 8 and 9

12. Rejected for the reasons stated in Finding 9

COPIES FURNISHED:

David G. Pius, Esquire Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Karen Coolman Amlong Amlong & Amlong, P.A.

101 Northeast Third Avenue Second Floor

Fort Lauderdale, Florida 33301

Rod Presnell, Executive Director

Board of Osteopathic Medical Examiners 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Kenneth D. Easley, Esquire General Counsel

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, FL 32399-0729

Dr. Wilfred Mittelstadt, D.O., 4001 Ocean Drive

Fort Lauderdale, FL 33304

Docket for Case No: 88-006468

Orders for Case No: 88-006468