STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD )

OF MEDICINE, )

)

Petitioner, )

vs. ) Case No. 90-3591

) ARCHBOLD N. JONES, JR., N.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 18, 1990, in Clearwater, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Bruce D. Lamb

Chief Trial Attorney Department of Professional Regulation

730 S. Sterling Street, Ste. 201 Tampa, Florida

For Respondent: Jerry Gottlieb

GOTTLIEB & GOTTLIEB, P.A.

2753 State Road 580, Suite 204

Clearwater, Florida 34621 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on April 19, 1990, when the Department of Professional Regulation (Department) filed an administrative complaint against the Respondent, Archbold M. Jones, Jr., M.D., which alleged three violations of Chapter 458, Florida Statutes. More specifically, the complaint alleged that the Respondent had violated a term of his probation by practicing medicine without proper supervision contrary to Section 458.331(1)(x), Florida Statutes; had failed to notify the Department of a change of address prior to closing his pediatric practice as required by Section 458.319(5), Florida Statutes. (therefore constituting a second violation of Section 458.331(1)(x), Florida Statutes); and had failed to timely pay the remaining balance of a fine due

pursuant to a prior order of the Board of Medicine also contrary to Section 458.331(1)(x), Florida Statutes. The Respondent executed an election of rights and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 8, 1990.

At the hearing, the Department filed a stipulation executed by the parties and the depositions of Dorothy Faircloth and Dr. John S. Curran. Additionally, it presented the testimony of Rosemary T. Gazverde, former investigator employed by the Department. Exhibits marked for identification as DPR Ex. 1 and

2 were admitted into evidence. The Respondent testified in his own behalf and the Respondent's exhibits numbered 1 through 5 were admitted into evidence.

The transcript of the proceedings was filed with the Division of Administrative Hearings on October 12, 1990. The parties submitted recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the stipulation of the parties, the testimony of the witnesses, and the evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency authorized to regulate the practice of medicine within the State of Florida.

   
   

2. At all times material to the allegations of the administrative complaint, Respondent is and has been a licensed physician in the State of Florida having been issued license number ME 0017104.

   
   

3. On April 21, 1986, the Board of Medical Examiners, now known as the Board of Medicine (Board), issued a final order which provided for the following conditions in connection with a stipulated disposition of an administrative dispute involving the Respondent. In pertinent part, that order required: the Respondent to pay an administrative fine in the amount of $8,000 in payments of

   $2,000; that the Respondent's license to practice medicine in Florida be placed on probation for a five year period; and that a monitoring physician make regular visits to Respondent's office and submit appropriate reports to the Board regarding Respondent's performance.

   
   

4. On August 10, 1987, the Board of Medicine entered a final order which accepted the recommended order entered by a Hearing Officer on July 6, 1987. That recommended order found that the Respondent had violated the terms of the prior final order previously entered in a disciplinary proceeding (the final order described in paragraph 3). The Board imposed a three month suspension in connection with the violations and further clarified the terms of Respondent's probation.

   
   

5. On March 1, 1988, the Board of Medicine filed a final order which extended Respondent's suspension for an additional 90 days in connection with additional violations of chapter 458 related to his failure to comply with the terms of the probation previously imposed upon him.

   
   

6. On June 21, 1988, the Board of Medicine filed a final order which suspended Respondent's license to practice medicine until completion of continuing medical education courses and further specified that upon completion of the license suspension, Respondent's license to practice medicine would be on

   probation for a period of five years. That final order amended the due dates for the payment of the installments of the administrative fine to require a

   $2000 payment no later than December, 1988, and a $2000 payment no later than June, 1989.

   
   

7. Subsequently, the Respondent requested that the terms of probation be modified and on March 22, 1989, an Order was entered by the Board of Medicine which granted several modifications to the terms of Respondent1s probation. That order provided that Dr. John S. Curran would serve as Respondent's supervising physician for Respondent's practice of pediatric medicine.

   
   

8. On September 19, 1989, Dr. Curran wrote to the Board of Medicine to request that he be released from any further supervision responsibility for the Respondent. That letter provided, in part:

   
   

   Please be advised that I have received information that Dr. Archie Jones has closed his practice in Lutz, Florida. I last submitted a report late July 1989 when I visited his office and I reviewed all patient files.

   He informs me that he has seen between five and ten patients since the time of my review and the closure of his office approximately 12 August 1989.

   It is my understanding that he intends to move to the state of Georgia.

   I would respectfully request release from any further supervision responsibility for Dr.

   Jones effective the date of closure of his office.

   
   

9. On November 14, 1989, Dorothy Faircloth as Executive Director for the Board of Medicine notified the Respondent that Dr. Curran had written requesting release from any further supervision responsibility. Further, that letter advised Respondent that:

   
   

   You are advised that according to the Final Order of the Florida Board of Medicine you may only practice under the supervision of a board certified pediatrician approved by the Board. To practice without the proper supervision is in direct violation of the Final Order and is grounds for further disciplinary action.

   
   

   The letter described above was received by the Respondent on November 27, 1989.

10. On November 28, 1989, Respondent executed a Petition for Modification of Payment Schedule which requested an extension of time for payment of the balance of the fine amount due November 30, 1989. Respondent sought a payment date of May 30, 1990 for the final $2000 payment owed. That petition provided, in part:

    
    

    4. That because of adverse publicity which negated patients, Respondents was forced to close his office in July of 1989 and has not been able to secure employment since that date.

    
    

11. A letter written by Respondent to his landlords on stationery styled "Lutz Pediatric Center" stated: "It is with a heavy heart that I write to say that I have had to close the Lutz Pediatric Center as of 9/8/89." That letter was dated September 14, 1989.

    
    

12. A second letter written by Respondent "To whom it may concern" provided that: "As of 8/11/89 my office at the above address will be permanently closed for the practice of pediatrics." This letter was purportedly written on July 30, 1989, to advise the Department of the closure of the Respondent's office and his new mailing address of P.O. Box 757, Safety Harbor, Florida.

    
    

13. On November 28, 1989, the Respondent telephoned in a prescription for a patient, D.T., to Freddy's pharmacy in Tampa, Florida. This prescription, for a legend drug known as Keflex, was requested for an adult friend of the Respondent's for whom Respondent had not made a medical examination nor received a fee for his services in connection with the prescription.

    
    

14. On February 17, 1990, the Respondent received a notice that his request for an extension on the payment of the administrative fine had been denied. That notice requested that Respondent submit the remaining $2000 to the Board office within five days of the receipt of the letter.

    
    

15. On February 21, 1990, the Respondent filed a bankruptcy petition in the Middle District of Florida. The discharge of debtor was entered by that court on May 25, 1990.

    
    

16. Initially, Respondent was uncertain as to whether the administrative fine which had been due November 30, 1989, would be discharged by the bankruptcy proceedings. He paid the $2000 into his attorney's escrow account pending resolution of the legal issue. The exact date of that payment is uncertain. However, on June 20, 1990, Respondent, through his attorney, remitted the final

    $2000 payment to the Board of Medicine.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

18. The Department bears the burden of proving the allegations of the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

19. Section 458.331(1), Florida Statutes, provides that a physician may be disciplined by revocation or suspension for the commission of any of the violations described in that subsection. Pertinent to this case is the following subsection of that provision:

    
    

    (x) 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.

    
    

20. The final orders described in the findings of fact above constitute lawful orders previously entered in a disciplinary hearing. Accordingly, the Respondent was obligated to comply with the terms of the orders.

    
    

21. In this case, the Department has established by clear and convincing evidence that the Respondent practiced medicine in violation of the orders of the Board of Medicine by telephoning the prescription for the patient on November 28, 1989. That act constitutes the practice of medicine as defined in Section 458.305, Florida Statutes, and was in violation of the specified terms of Respondent's probation. Moreover, that act was committed after Respondent was aware that his supervising physician had requested to be released from his supervisory responsibilities and after Respondent had (by any of his alleged dates of closure) ended his practice of medicine at the Lutz Pediatric Center. Consequently, it was improper for him to telephone the prescription. Respondent's indifference to the terms of his probation cannot be excused by his perceived need to help a friend obtain an antibiotic. Had he been in active practice, under the terms of his probation, Respondent was only to engage in pediatric medicine.

    
    

22. The Department has not established that the Respondent failed to notify the Board of Medicine regarding his change of address nor the closure of his office. While the record is conflicting as to exactly when Respondent ceased to operate the Lutz Pediatric Center and examine patients, it would appear the Board was apprised of a current and valid address for the Respondent and that the monitoring physician did not have difficulties coordinating with Respondent during the review period.

    
    

23. Additionally, the Department has not established that the Respondent failed to remit the administrative fine. While it is certain that the payment of that fine was untimely, the reasons offered by Respondent, although erroneous, justified his course of conduct under the circumstances. Had the Respondent not gone through bankruptcy proceedings, the nonpayment would not be excused.

    
    

24. Rule 21M-20.001, Florida Administrative Code, provides the disciplinary guidelines regarding violations of Section 458.331(1), Florida Statutes. That rule provides, in pertinent part:

    RECOMMENDED RANGE

    VIOLATION OF PENALTY

    
    

    (x) Violation of law (x)From a reprimand to

    rule, order, or revocation or denial,

    failure to comply with and an administrative

    subpoena. fine from $250.00 to

    (458.331(1)(x)F.S. $5,000.00.

    
    

25. The Board is authorized to deviate from the recommended range of penalties when there are aggravating or mitigating factors in an individual case. Among such factors are: the number of counts or separate offenses established; the disciplinary history of the applicant or licensee in any jurisdiction and the length of practice; and any other relevant mitigating factors. See Rule 21M-20.001(3), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That the Board of Medicine enter a final order finding that the Respondent, Archbold M. Jones, M.D., violated Section 458.331(1)(x), Florida Statutes, and suspending his license for a period of two years.

DONE and ENTERED this 29 day of November, 1990, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed this 29 day of November, 1990 with the Clerk of the Division of Administrative Hearings.

APPENDIX TO CASE NO. 90-3591

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 3 are accepted.

2. With regard to paragraph 4, it is accepted that the Respondent was to pay an administrative fine in the amount of $8,000 with installments of $2000. Otherwise, rejected as irrelevant or immaterial to the allegations of this case. It is undisputed that the final $2000 payment was not remitted by Respondent until June, 1990.

3. Paragraphs 5 and 6 are accepted in substance.

4. To the extent that a clarification of the terms of Respondent's probation were required incidental to a subsequent disciplinary action, paragraph 7 is accepted.

5. Paragraphs 8 through 10 are accepted.

6. Paragraph 11 is accepted in that it accurately depicts the action taken by the probationary committee, however, that information was not contemporaneously shared with Respondent. The Respondent was, by then, not

   practicing at the Lutz Pediatric Center and therefore not in need of supervision (theoretically) since he was not supposed to be practicing. That he did so by issuing the prescription on November 28, 1989, is the crux of this case.

7. As explained in paragraph 6 above, paragraph 12 is accepted. It should be noted that Respondent was not to be practicing medicine at the time in issue (November 28, 1989) at all.

8. With regard to paragraph 13, it is accepted that the Respondent did not have an office at the Lutz address in October, 1989; otherwise, rejected as inaccurate statement of fact.

9. Paragraph 14 is rejected as contrary to the weight of the evidence.

10. Paragraph 15 is accepted but is irrelevant.

11. Paragraph 16 is accepted but the Respondent has presented a reasonable explanation for the failure to timely remit the payment.

12. Paragraph 17 is accepted.

13. Paragraph 18 is accepted.

14. Paragraph 19 is rejected as hearsay not supported by direct evidence.

15. With regard to paragraph 20, it is accepted that at the time the prescription was telephoned in, Respondent's Lutz office was closed; otherwise rejected as speculation or irrelevant since at that time Respondent was not supposed to be practicing medicine at all.

16. With regard to paragraph 21, it is accepted that Respondent by prescribing the substance practiced medicine other than as required under the terms of his probation. Otherwise, rejected as contrary to the evidence or irrelevant. See comments above.

17. Paragraphs 22 and 23 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1 and 2 are accepted.

2. Paragraph 3 is accepted but is irrelevant since at the time the prescription was made Respondent knew that Dr. Curran had requested to be released because Respondent was closing his office and would not be in the practice of medicine. But for Respondent's insistence that the office would be closed, Dr. Curran would not have requested release.

3. Paragraph 4 is rejected as contrary to the weight of the credible evidence. Respondent's account of whether he would or would not have issued the prescription was totally incredible. Respondent took the position that telephoning the prescription was not practicing medicine, a totally fallacious assertion. But for his license, Respondent would not be privileged to

   request prescriptions on behalf of others.

4. Paragraph 5 is rejected as irrelevant.

5. With regard to paragraph 6, the exact time Respondent notified the Board or the Department became aware of Respondent's accurate address is not established by this record. It is accepted that the Board did have access to Respondent's whereabouts at all material times. Otherwise the paragraph is rejected as not supported by the weight of the credible evidence.

6. Paragraphs 7, 8 and 9 are rejected as irrelevant or argument; see comment to paragraph 6 above.

7. Paragraphs 10 and 11 are accepted.

8. With regard to paragraph 12, it is accepted that Respondent requested an extension within which to pay the final $2000 installment. Otherwise, rejected as irrelevant or unsupported by the evidence.

9. Paragraph 13 is accepted.

10. Paragraphs 14 and 15 are rejected as irrelevant, argument, or unnecessary to the resolution of the issues of this case.

11. Paragraph 16 is accepted in substance; the exact date the monies were placed in escrow is not known.

12. With regard to paragraph 17, it is accepted that ultimately the Respondent remitted the final $2000 payment and that such payment was made approximately one month after the discharge was entered by the bankruptcy court.

COPIES FURNISHED:

Bruce D. Lamb

Chief Trial Attorney Department of Professional Regulation

730 South Sterling Street Suite 201

Tampa, Florida 33609

Jerry Gottlieb

GOTTLIEB & GOTTLIEB, P.A.

2753 State Road 580, Suite 204

Clearwater, Florida 34621

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-003591

Orders for Case No: 90-003591