STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0545

)

HENRY D. MESSER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Tallahassee, Florida, on May 29, 1990, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Andrea Bateman, Esquire

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 For Respondent: (No appearance)

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent. By Administrative Complaint the Respondent has been charged with a violation of Section 458.331(1)(b), Florida Statutes, on the basis of allegations that disciplinary action was taken against the Respondent's license to practice medicine in the State of New York.

PRELIMINARY STATEMENT

At the formal hearing, the Petitioner appeared through counsel. There was no appearance by the Respondent. The Petitioner offered two exhibits which were received in evidence and also presented the testimony of one witness. The Petitioner also requested that official recognition be taken of various documents. The request for official recognition was granted and the documents officially recognized have been included in the record in this case. The parties were allowed until June 8, 1990, within which to file proposed recommended orders. The Respondent did not avail himself of that opportunity.

The Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all findings proposed by the Petitioner has been included in the findings of fact set forth below.

FINDINGS OF FACT

1. The Respondent is a licensed physician in the State of Florida, and has been so licensed at all times material to this case. His license number in the State of Florida is ME 0005090.

   
   

2. The New York State Board of Regents is the medical licensing authority of the State of New York. On or about September 4, 1987, the New York State Board of Regents, Regents Review Committee, voted to suspend the Respondent's license and registration to practice as a physician in the State of New York for a period of one year. The Regents Review Committee also voted to stay the period of suspension. On or about September 18, 1987, the Board of Regents voted to accept the findings, conclusions, and recommendations of the Regents Review Committee. On October 24, 1987, the Commissioner of Education of the State of New York, acting for and on behalf of the State Education Department and the Board of Regents, issued an order reading as follows:

   
   

   Upon the report of the Regents Review Committee, under Calendar -No. 7367, the record herein, the vote of the Board of Regents on September 18, 1987, and in accordance with the provisions of Title VIII of the Education Law, which report and vote are incorporated herein and made a part hereof, it is

   ORDERED that the record herein be accepted; that the report, findings of fact, determination as to guilt, and recommendation as to the penalty to be imposed rendered by the Regents Review Committee in the matter of HENRY D. MESSER, respondent, be accepted; that the respondent is guilty of the charge by a preponderance of the evidence; that respondent's license and registration to practice as a physician in the State of New York be suspended for one year upon the charge of which respondent has been found guilty; and that execution of said suspension be stayed.

   
   

3. The charge against the Respondent that resulted in the order described above was that he had violated Section 6509(5) (a) (iii), of the New York Education Law, which authorizes disciplinary action when a licensee is guilty of "[b]eing convicted of committing an act constituting a crime under .

   . [t]he law of another jurisdiction and which, if committed in this state, would have constituted a crime under New York State law." The Respondent's criminal conviction is described in the charge against him as follows:

   
   

   On or about February 14, 1985, after a non- jury trial in the 36th District Court for the City of Detroit, Michigan, the Respondent was convicted of Disorderly Conduct - Indecent and Obscene Conduct in a Public Place (City

   of Detroit Ordinance, section 39-3-7), a misdemeanor. The Respondent was fined

   $250.00 and placed on probation for a period of one year.

   
   

4. In determining the appropriate penalty to recommend in the New York proceedings against the Respondent, the Regents Review Committee specifically considered the Respondent's "unblemished record for approximately 30 years," as well as the fact that the Petitioner in the New York proceedings was not seeking to prevent the Respondent from practicing medicine.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sec. 120.57, Fla. Stat.

   
   

6. Pursuant to Section 458.331(1)(b), Florida Statutes, the Board of Medicine is authorized to take disciplinary action against a licensee who is guilty of:

   
   

   Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions.

   
   

7. The facts in the case establish a violation of Section 458.331(1)(b), Florida Statutes. The Petitioner argues that such violation warrants a penalty of revocation of the Respondent's license to practice medicine in Florida. In support of the argument the Petitioner directs attention to "the serious nature of the violation and the fact that he [Respondent] could do potential injury to the public."

   
   

8. The arguments in favor of revocation are not persuasive. With regard to the "serious nature" of the violation, it is first noted that the crime of which the Respondent was convicted is only a misdemeanor; not a felony. Further, the licensing authorities in New York were of the opinion that the crime was not sufficiently serious to seek to prevent the Respondent from practicing medicine. With regard to "potential injury to the public," the record in this case simply lacks any information upon which to predicate a belief that the Respondent is likely to injure the public. Specifically, there is nothing in the record of this case upon which to base a suspicion, much less a conclusion, that the Respondent poses any threat of harm to his patients.

   
   

9. The Board of Medicine has adopted disciplinary guidelines that appear at Rule 21M-20.001, Florida Administrative Code. For a violation of Section 458.331(1) (b), Florida Statutes, Rule 21M-20.001 provides the following recommended penalty range:

   
   

   From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in

   the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $250.00 to $5,000.00

   
   

10. It is difficult to apply the foregoing disciplinary guideline to the facts in this case because if, in the language of the rule, "the substantive violation had occurred in Florida," there may well have been no disciplinary action. This is because, unlike the New York law under which the Respondent was disciplined, the Florida statutory provisions authorizing disciplinary action against physicians licensed in this state do not authorize disciplinary action upon conviction of any crime, but only those crimes that directly relate to the practice of medicine or the ability to practice medicine. See Section 458.331(1)(c), Florida Statutes. And, in any event, the disciplinary guidelines in Rule 21M-20.001 provide little guidance with respect to violations of Section 458.331(1)(c), because the guideline range is extremely broad.

    
    

11. Rule 21M-20.001 also lists six specific factors to be considered in determining whether aggravating or mitigating circumstances warrant a deviation from the guideline penalties. Each of the specified factors supports a conclusion that the penalty in this case should be mitigated in favor of the Respondent. A further consideration is that there does not appear to be any record basis for imposing a harsher penalty in Florida than was imposed in New York.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a final order in this case concluding that the Respondent has violated Section 458.331(1)(b), Florida Statutes, and imposing a penalty of one year probation.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1990.

MICHAEL M. PARRISH

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 26th day of June 1990.

COPIES FURNISHED:

Andrea Bateman, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Henry D. Messer, M.D. 23248 Bonair

Dearborn Heights, MI 48127

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 90-000545

Orders for Case No: 90-000545