STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

vs. ) CASE NO. 89-3670

) WILLIAM S. PIPER, SR., M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 17, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Andrea Bateman, Esquire

Senior Attorney

Department of professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0750 For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed, against his license to practice medicine in the State of Florida.

PRELIMINARY STATEMENT

On April 6, 1989, Petitioner filed an Administrative complaint containing five counts against Respondent, a doctor whose license to practice medicine in the State of Florida has been on inactive status since shortly after his retirement in 1984.

The Administrative Complaint alleges that Respondent authorized a prescription for himself for one controlled substance and that he wrote a second prescription for himself for another controlled substance. The Administrative Complaint further alleges that these events occurred in the State of North Carolina and that Respondent was not licensed to practice medicine in the State of North Carolina.

Count I of the Administrative Complaint charges Respondent with having practiced or having offered to practice beyond the scope permitted by law in violation of Section 458.331(1)(v), Florida Statutes.

Count II of the Administrative complaint charges Respondent with having failed to perform a statutory or legal obligation in violation of Section 458.331(1)(g) , Florida Statutes, by failing to obtain authorization from the Drug Enforcement Agency prior to issuing prescriptions for controlled substances as required by federal law.

Count III of the Administrative complaint charges Respondent with having violated the provisions of Section 458.331(1)(x), Florida Statutes, by having failed to advise Petitioner that he could be practicing medicine in North Carolina as required by Section 458.319(5), Florida statutes.

Count IV of the Administrative Complaint charges Respondent with prescribing controlled substances to himself in violation of Section 458.331(1)(r), Florida Statutes.

Count V of the Administrative Complaint charges Respondent with prescribing controlled substances other than in the course of his professional practice in violation of Section 458.331(1)(q), Florida Statutes.

The Election of Rights form executed by Respondent indicated that he did not dispute the allegations of fact contained in the Administrative Complaint and that he waived his right to a formal hearing. However, a letter attached to the Election of Rights form disputed the factual allegations of the Administrative Complaint. This proceeding followed the filing of the letter.

Respondent did not appear and he was not represented at the formal hearing.

At the formal hearing, Petitioner presented three documentary exhibits and received authorization to submit a late-filed exhibit. Petitioner's Exhibit 1 is a composite exhibit consisting of Respondent's answers to Petitioner's discovery document entitled Petitioner's First Set of Request for Admissions, Request for Production of Documents and Interrogatories to Respondent.

Petitioner's Exhibit 2 is the deposition of L.D. Beaver, an investigator with the North Carolina Board of Medical Examiners. Petitioner's Exhibit 3 is a composite exhibit consisting of photostatic copies of the two prescriptions involved in this proceeding. The late-filed exhibit was the deposition of Kenneth Leon Murphy, a pharmacist in North Carolina. All exhibits, including the late-filed exhibit, were accepted into evidence. No witnesses or other exhibits were presented.

A transcript of the proceedings has been filed. Rulings on the Petitioner's proposed findings are in the appendix to this recommended order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was licensed to practice medicine in the State of Florida, having been issued license number ME 0003174. Respondent, who was first licensed to practice medicine in the State of Florida in 1946, retired in 1984 and his license was soon thereafter placed on an inactive status.

   
   

2. Respondent is registered with the Drug Enforcement Agency, DEA # AP 0114087, authorizing Respondent to issue controlled substances in Coral Gables, Florida.

3. In June 1987, Respondent resided in or near Franklin, North Carolina. Respondent is not licensed to practice medicine in the State of North Carolina, and he is not authorized to issue controlled substances in the State of North Carolina.

   
   

4. On or about June 8, 1987, Respondent authorized Kenneth Leon Murphy, a pharmacist who at that time worked at the Revco Pharmacy in Franklin, North Carolina, to fill a prescription for acetaminophen with codeine and to dispense the same to Respondent. Codeine is a controlled substance as defined by the provisions of Chapter 893, Florida Statutes. This prescription was filled on June 8, 1987, by the Revco Pharmacy in Franklin, North Carolina and picked up by Respondent that same day.

   
   

5. On June 11, 1987, Respondent wrote a prescription for chloral0 hydrate to be dispensed to himself. Respondent listed his Drug Enforcement Agency number on the prescription. Respondent had the prescription filled by Mr. Murphy at the Revco Pharmacy in Franklin, North Carolina where he personally picked up the prescription. Chloral hydrate is a controlled substance as defined by the provisions of Chapter 893, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 458.331(1), Florida Statutes, which relates to the discipline of medical doctors, provides, in pertinent part, as follows:

   
   

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

      * * *

      (g) Failing to perform any statutory or legal obligation placed upon a licensed physician.

      * * *

      1. Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately

         ... is not in the course of the physician's professional practice, without regard to intent.

      2. Prescribing, dispensing, or administering any medicinal drug appearing on any schedule set forth in chapter 893 by the physician to himself,

      . . .

      * * *

      (v) Practicing or offering to practice beyond the scope permitted by law ...

      * * *

      (x) Violating any provision of this chapter ...

      
      

8. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count I of the Administrative Complaint. By writing the prescriptions for the two controlled substances in a jurisdiction for which he had no license to practice, Respondent engaged in the practice of medicine beyond the scope of his licensure. The prescription of medicine for any human pain or disease constitutes the practice of medicine as that term is defined by Section 458.305(3), Florida Statutes.

   
   

10. Petitioner did not establish that Respondent failed to perform any statutory or legal obligation within the meaning of Section 458.331(1)(g), Florida Statutes, as alleged in Count II of the Administrative Complaint. Although Petitioner established that Respondent was not licensed to practice medicine in North Carolina, there was no showing as to the requirements of either federal or North Carolina law in regaids to the writing of prescriptions for controlled substances in the State of North Carolina.

    
    

11. Petitioner failed to establish that Respondent was required to comply with the provisions of Section 458.319(5), Florida Statutes. That provision requires a licensee to notify Petitioner of a change in the address of the licensee's primary place of practice. There was no showing that Respondent had changed or that he intended to change his primary place of practice to North Carolina. Consequently, Petitioner failed to establish that Respondent violated the provisions of Section 458.331(1)(x), Florida Statutes, as alleged in Count III of the Administrative Complaint.

    
    

12. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 458.331(1)(r), Florida Statutes, by authorizing for himself the prescription containing codeine and by writing for himself the prescription for chloral hydrate.

    
    

13. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 458.331(1)(q), Florida Statutes, by authorizing for himself the prescription containing codeine and by writing for himself the prescription for chloral hydrate outside the course of his professional practice.

14. The provisions of Section 458.331(2) , Florida Statutes, provide, in pertinent part, as follows:

    
    

    (2) When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

    * * *

    1. Revocation or suspension of a license.

    2. Restriction of practiced.

    3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify. . .

    
    

15. The disciplinary guidelines found in Rule 21M-17.015, Florida Administrative Code, pertinent to this case, provides as the recommended penalty for a violation of Section 458.331(1)(q),(r), or (v), Florida Statutes, a range of from one year probation to revocation of licensure and an administrative fine from $50 to $1,000. The provisions of Rule 21M-17.015(3), Florida Administrative Code, permit Petitioner to deviate from the recommended penalties upon the consideration of mitigating factors.

    
    

16. In recommending the penalty to be imposed in this case, it is appropriate to consider as mitigating factors that Respondent has been licensed to practice medicine in Florida since 1946, that he has been retired since 1984, and that his license to practice medicine in Florida is on an inactive status. There was no evidence that Respondent had been previously disciplined by Petitioner or that these were anything other than isolated incidents.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(q),(r), and (v), Florida Statutes, which reprimands Respondent for these violations, and which places Respondent's licensure on probation for a period of one year. It is recommended that no administrative fine be imposed in consideration of the mitigating factors presented by this case.

DONE AND ENTERED this 22nd day of December, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 3670

The proposed finding contained in paragraph ten of the Petitioner's proposed recommended order that Respondent's license is delinquent is rejected as being unsubstantiated by the evidence. The remaining proposed findings of fact submitted on behalf of Petitioner are adopted in material part by the Recommended Order.

COPIES FURNISHED:

Andrea Bateman, Senior Attorney Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William S. Piper, Sr., M.D. 1019 Malaga Avenue

Coral Gables, Florida 33134

Dorothy Faircloth Executive Director Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth B. Basley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-003670

Orders for Case No: 89-003670