STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE M. BERMUDEZ, )

)

)

)

Petitioner, )

)

vs. ) CASE NO. 90-5894

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

)

)

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 January 30, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Stephen H. Rosen, Esquire

2600 Douglas Road

Penthouse #2

Coral Gables, Florida 33134

For Respondent: Allen R. Grossman, Esquire

Assistant Attorney General Suite 1602, The Capitol Tallahassee, Florida

32399-1050

STATEMENT OF THE ISSUE

Whether Respondent abused its discretion in withdrawing its certification of eligibility which had authorized Petitioner, a physician who was educated and trained in Nicaragua, to enroll in a course at the University of Miami that is necessary for his licensure to practice medicine in the State of Florida.

PRELIMINARY STATEMENT

Petitioner, a physician who now lives in Florida, was educated and trained in Nicaragua. Petitioner filed application with Respondent for licensure through examination so he could engage in the practice of medicine in Florida. Pursuant to the provisions of Chapter 89-374, Laws of Florida, the University of Miami offers a course which Petitioner needed to successfully complete as part of the licensure by examination process. This course is available only to those applicants who receive the Board of Medicine's certification to take the course.

In February 1990, the Board of Medicine certified Petitioner's eligibility to take the course and Petitioner enrolled in the class with the hopes of becoming licensed to practice medicine in the State of Florida.

On April 26, 1990, Petitioner was arrested in Miami, Florida, and charged with two counts of practicing medicine without a license. The charges filed against Petitioner followed an investigation conducted jointly by the Florida Department of Law Enforcement and by the Florida Department of Professional Regulation (DPR). In September 1990, Petitioner entered a plea of nolo contendere to the criminal charges. The Board of Medicine thereafter entered an order which withdrew its certification authorizing Petitioner's enrollment in the class, but later stayed that order pending the resolution of this administrative proceeding.

Petitioner admits that he engaged in the unlicensed practice of medicine, but asserts the defense of entrapment, contending that he was improperly induced to engage in the unlicensed practice of medicine by the DPR investigator.

At the formal hearing, Petitioner testified on his own behalf and presented the testimony of three other individuals. In addition, Petitioner presented two exhibits, each of which was accepted into evidence. Respondent presented the testimony of one witness and offered two exhibits, each of which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On October 19, 1989, Petitioner submitted to the Board of Medicine an application for licensure as a physician in the State of Florida. This application sought licensure by examination pursuant to Section 458.311(10), Florida Statutes.

   
   

2. Petitioner is a physician who received his education and training in Nicaragua and who had practiced medicine in Nicaragua for approximately twenty years before moving to Florida. At no time pertinent to these proceedings was Petitioner licensed to practice medicine in the State of Florida.

   
   

3. Petitioner's application sought the Board of Medicine's certification that Petitioner was eligible to enroll in a physician training course offered by the University of Miami. Petitioner needed to successfully complete this course as part of the licensure by examination process. Petitioner enrolled in this class after his eligibility was certified by the Board of Medicine on February 19, 1990.

   
   

4. In April of 1990, a joint investigation of the L.A. Surgical Medical Center in Miami, Florida, (L.A. Center) was undertaken by the Florida Department of Law Enforcement and the Florida Department of Professional Regulation (DPR). While those agencies had reason to believe that an unlicensed physician was

   operating out of that facility, Petitioner was not initially a target of the investigation. Petitioner was, at the times pertinent hereto, the administrator of the L.A. Center.

   
   

5. At the times pertinent to this proceeding Ramon Prieto was an undercover investigator employed by DPR. On April 25, 1990, Mr. Prieto presented himself to the L.A. Center complaining of severe back pains and asked to see a doctor. There was no licensed physician on the premises of the L.A. Center even though Mr. Prieto presented himself at approximately 1:00 p.m., which is during the L.A. Center's normal business hours. Mr. Prieto was seated in the waiting area where he waited for approximately twenty minutes. Petitioner came into the area in which Mr. Prieto had been waiting, told Mr. Prieto to come with him, and escorted Mr. Prieto into a doctor's office.

   
   

6. In connection with Mr. Prieto's visit on April 25, 1990, Petitioner performed a medical examination, made a medical diagnosis, prescribed and dispensed medication, ordered x-rays, and created medical records. Petitioner also prescribed and provided medication for Mr. Prieto's wife based on Mr. Prieto's description of her symptoms even though Petitioner had not examined her or talked to her. Mr. Prieto requested that Petitioner give to him medication for himself and for his wife. While Mr. Prieto pretended to be in considerable pain, the evidence does not establish that his condition was treated by Petitioner as an emergency.

   
   

7. On April 26, 1990, Mr. Prieto returned to the L.A. Center where he was again prescribed medication by Petitioner.

   
   

8. Mr. Prieto was billed for Petitioner's services and for the medication that Petitioner gave to Mr. Prieto for himself and for his wife.

   
   

9. On April 26, 1990, after Mr. Prieto's return visit, Petitioner was arrested by agents of the Florida Department of Law Enforcement. An information was filed against Petitioner charging him with two counts of practicing medicine without a license, which are third degree felony charges.

   
   

10. On August 16, 1990, the Board of Medicine withdrew its certification of Petitioner's eligibility to continue the course at the University of Miami. Thereafter Petitioner filed his request for a formal administrative hearing. On September 24, 1990, the Board of Medicine entered an order which stayed its Order entered August 16, 1990, pending the resolution of this administrative proceeding.

    
    

11. On September 10, 1990, in the Circuit Court for Dade County, Florida, Petitioner entered a plea of nolo contendere to the criminal charges that had been filed against him. The plea was accepted, adjudication of guilt was withheld, and Petitioner was sentenced to two days of time served.

    
    

12. There was no evidence that Petitioner had engaged in the practice of medicine in the State of Florida without a license before or after April 25-26, 1990. The Board of Medicine had received no complaints regarding Petitioner other than those related to the events of April 25-26, 1990.

    
    

13. Petitioner knew that his conduct with Mr. Prieto was wrong and that it constituted the unlicensed practice of medicine.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

15. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), Astral Liquors, Inc. v. State, Department of Business Regulation, 432 So.2d 93 (Fla. 3rd DCA 1983); and Balino

    v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

    
    

16. The provisions of Section 458.311, Florida Statutes, provides for the licensure by the State of Florida of physicians by examination under certain specified conditions. Among other criteria, an applicant for licensure for examination must not have "... committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331." Section 458.311(1)(d), Florida Statutes.

    
    

17. To be eligible to sit for the examination for licensure administered by the Federation of State Medical Boards of the United States, Inc., (FLEX), an applicant must have successfully completed one of two examination or, in the alternative to passing one of those two examinations, the applicant must have successfully completed the course developed for the University of Miami for physician training. Petitioner elected to take the course at the University of Miami.

    
    

18. Pursuant to Section 458.327, Florida Statutes, the practice of medicine or an attempt to practice medicine without an active license constitutes a felony of the third degree.

    
    

19. Section 458.331, Florida Statutes, provides, in pertinent part:

    
    

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

       * * *

       (c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine.

       
       

20. The crime of practicing medicine without a license is a crime which directly relates to the practice of medicine within the meaning of Section 458.331(1)(c), Florida Statutes. Petitioner does not dispute that he engaged in the practice of medicine without a license at the L.A. Center on April 25-26, 1990. Petitioner failed to establish that the plea of nolo contendere he entered to the two felony charges of practicing medicine without a license was not a voluntary plea. It is concluded that Respondent is entitled to rely on that plea pursuant to the provisions of Section 458.331(1)(c), Florida Statutes.

21. Petitioner's sole basis for challenging the Board of Medicine's intended action is the defense of entrapment based on his contention that he was improperly induced into committing the offense of practicing medicine without a license by the DPR investigator. Petitioner contends that he engaged in such conduct only because Mr. Prieto pretended to be in such extreme pain. The greater weight of the evidence is that Mr. Prieto did not improperly induce Petitioner to engage in the unlicensed practice of medicine. Petitioner could have referred Mr. Prieto to a licensed physician since he knew that no licensed physician was either present or expected at the L.A. Center. Instead, Petitioner seized the opportunity presented by Mr. Prieto's visit to earn money by engaging in the practice medicine without a license even to the extent that he prescribed and dispensed medication to a woman he had never seen or talked to. It is concluded from the entire record that Mr. Prieto merely presented Petitioner with the opportunity to engage in the practice of medicine without a license, but that he did not improperly induce him to do so. Consequently, Petitioner's defense of entrapment is rejected. Compare, Dupuy v. State, 141 So.2d 825 (Fla. 3d DCA 1962), Florida Board of Pharmacy v. Hall, 157 So.2d 824 (Fla. 2d DCA 1963); and Mitchell v. Gillespie, 164 So. 2d 867 (Fla. 1st DCA 1964).

    
    

22. Petitioner has failed to establish by a preponderance of the evidence that he is entitled to the relief he seeks in this administrative proceeding or that Respondent acted in an arbitrary or capricious manner in withdrawing its certification of Petitioner's eligibility to continue the University of Miami course.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the Board of

Medicine's withdrawal of its certification of Jose M. Bermudez's eligibility to take the subject University of Miami course.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of March, 1991.

CLAUDE B. ARRINGTON

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 25th day of March, 1991.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5894

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraph 1 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 2 - 6 are rejected as being the recitation of testimony that is either subordinate to the findings made or unnecessary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1 - 10 are adopted in material part by the Recommended Order.

COPIES FURNISHED:

Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050

Stephen H. Rosen, Esquire

2600 Douglas Road, Penthouse #2 Coral Gables, Florida 33134

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dorothy Faircloth Executive Director Department of Professional

Regulation

1940 North Monroe Street Suite 60

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: 90-005894

Orders for Case No: 90-005894