STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BRICCIO DIZON VALDEZ, M.D., )
)
Petitioner, )
)
vs. ) CASE NO. 92-5581
) DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 5, 1994, in Jacksonville, Florida.
APPEARANCES
For Petitioner: Paul Watson Lambert, Esquire
2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749
For Respondent: Gregory A. Chaires, Esquire
Assistant Attorney General PL-01, The Capitol
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE
Whether the Petitioner's application for licensure as a physician by examination should be approved.
PRELIMINARY STATEMENT
By Order filed August 5, 1992, the Department of Business Regulation, Board of Medicine denied the Petitioner's application for licensure as a physician by examination.
The Petitioner requested a hearing. The matter was referred to the Division of Administrative Hearings which scheduled the proceeding. The hearing was continued on several instances at the request of either or both of the parties. The matter was transferred to the undersigned on December 13, 1993.
At the hearing, the Petitioner presented the testimony of one witness, testified on his own behalf and had three exhibits admitted into evidence. Respondent presented no testimony or exhibits.
A transcript of the hearing was filed. Extensions for filing proposed recommended orders were requested and granted. Both parties filed proposed
recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
On March 9, 1994, the Petitioner moved to supplement the record with a copy of a letter from authorities in Iowa. The Petitioner admits there was no request to permit consideration of post-hearing materials, but states that it is "offered for completeness of the record." The Respondent is opposed to the motion based on lack of relevance. The issue of licensure in Iowa is not relevant to this proceeding, accordingly, based on review of the motion and response, the motion is hereby denied.
FINDINGS OF FACT
Briccio Dizon Valdez, M.D., (Petitioner) is an applicant for licensure as a medical doctor by examination.
The Department of Professional and Business Regulation, Board of Medicine, (Board) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida.
In 1977, the Petitioner became licensed to practice medicine by the State of Florida.
On or about September 25, 1984, the Petitioner entered a plea of nolo contendere to a charge of witness tampering in medical malpractice litigation in which the Petitioner was a party. Adjudication was withheld. The Petitioner was placed on two years probation, fined $1,000 and ordered to perform 250 hours of community service.
By Final Order filed June 25, 1985, the Petitioner's Florida license to practice medicine was suspended for a period of three years for sexual misconduct with a patient under his care.
By Final Order filed February 27, 1987, the Petitioner's Florida license to practice medicine was suspended for a period of 44 days to run concurrently with the existing suspension. The additional suspension was based on the fact that the Petitioner continued to practice during the appeal of the sexual misconduct suspension, incorrectly believing that his appeal stayed the suspension.
On or about August 27, 1987, the Petitioner entered a plea of guilty to a charge of engaging in the sale of encyclopedias without an occupational license. Adjudication was withheld. The Petitioner was placed on probation for a period of one year.
By Final Order filed October 24, 1988, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. The case was based on an account by an investigator posing as a patient who allegedly received psychiatric services from the Petitioner during his period of suspension.
By Final Order filed November 9, 1989, the Petitioner's Georgia license to practice medicine was revoked based on the revocation of his Florida license.
In February 1990, the Petitioner submitted a Florida application for medical licensure. By Final Order filed February 8, 1991, the application was denied by the Board.
In October 1991, the Petitioner again submitted a Florida application for medical licensure.
In May 1992, the Board Credential's Committee reviewed the licensure application of the Petitioner. The Petitioner appeared before the committee, as did Dr. Ernest Miller, who had performed a psychiatric evaluation of the Petitioner.
On June 6, 1992, the Board of Medicine reviewed and denied the Petitioner's application. This is the denial at issue in this proceeding.
By Order filed August 5, 1992, the Board denied the Petitioner's application for licensure by examination. The letter of denial provides as follows:
The Board of Medicine reviewed and considered your application for licensure by examination on June 6, 1992, in Tampa, Florida and has determined that said licensure by examination be denied, stating as grounds therefore: that you have previously had your medical licensure in Florida and Georgia revoked. Prior to revocation, your Florida license was acted against because of sexual misconduct. You have not provided any evidence of rehabilitation since having your licenses revoked. You have not been in medical practice since 1985. You provided false statements in an affidavit accompanying your licensure application and you were lacking in candor in the testimony you provided to the Board's Credentials Committee.
The following findings specifically address each of the identified grounds for the Board's denial of the application:
PREVIOUS REVOCATION OF LICENSURE IN FLORIDA AND GEORGIA
As set forth herein, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license.
Based on the Florida proceedings, the State of Georgia first suspended and then revoked the Petitioner's Georgia license.
The Final Order revoking the Petitioner's license does not prohibit him from applying for re-licensure.
DISCIPLINE OF FLORIDA LICENSE PRIOR TO REVOCATION BASED ON SEXUAL MISCONDUCT
The evidence establishes that prior to the revocation of his Florida license, the Petitioner's license has been suspended for sexual misconduct. The period of suspension has been served. The order of suspension does not prohibit the Petitioner from applying for re-licensure.
LACK OF EVIDENCE OF REHABILITATION SINCE LICENSE REVOCATION
There is no evidence that the Board has directed the Petitioner to undertake any defined program of rehabilitation. There is no evidence that the Board directed the Petitioner to undergo psychiatric evaluation. The Petitioner has sought such evaluation on his own initiative.
On several occasions between November 1991 and December 1993, the Petitioner was examined by expert psychiatrist Dr. Ernest Miller. Dr. Miller has been professionally familiar with the Petitioner for approximately eleven years.
According to the testimony of Dr. Miller, the Petitioner demonstrates no dysfunction or disorder which would prevent him from adequately practicing psychiatry at this time. There is no cause to believe that the events which led to the Petitioner's suspension and revocation will be repeated.
Dr. Miller attended the May 26, 1992 meeting of the Board's Credentials Committee and was prepared to speak on his behalf.
Although the evidence is unclear as to whether Dr. Miller was provided the opportunity to speak to the committee during the May 26 meeting, Dr. Miller provided to the Board a written record of the evaluation and his findings prior to the meeting.
The greater weight of the evidence establishes that there is no "lack of evidence of rehabilitation since license revocation." There is no evidence that the Petitioner manifests dysfunction or disorder which would prevent him from adequately practicing psychiatry.
OUT OF MEDICAL PRACTICE SINCE 1985
Other than as set forth herein, the Petitioner has been out of medical practice since 1985, at the approximately time of the license suspension. He has remained active as a mental health counselor since 1989.
There is no credible evidence which would establish that the passage of time since the Petitioner actively practiced is sufficient to deny an application for licensure by examination.
FALSE STATEMENTS IN AN AFFIDAVIT ACCOMPANYING THE LICENSURE APPLICATION
The letter of denial fails to specifically identify which statements the Board considered to be false. Based on the evidence offered at hearing, it appears that the allegedly false statements are in relation to the Petitioner's performance on the "FLEX" exam.
In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in his initial application for licensure in April 1977 asserts that he has never failed the FLEX examination. At the time the Petitioner submitted the 1977 application, he had failed the Flex exam in both North Carolina and Georgia.
In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in the October 1991
application asserts that he has taken the FLEX exams in the State of Georgia and passed on his second attempt.
In a sworn affidavit dated January 28, 1992 and forwarded to the Board, the Petitioner states that he took and passed the FLEX exam in 1978 on his second attempt in Georgia.
At the hearing, the Petitioner testified that he had taken the FLEX exam in June 1977 and December 1977, both times in Georgia.
At the Board's request, the Petitioner authorized the Federation of State Medical Boards to furnish the Petitioner's "Examination and Board Action History Report" to the Board.
The report identifies the dates upon which the Petitioner has submitted to the Federation Licensing Exam (FLEX) and the results of those tests. Florida law provides that the FLEX exam must be passed by an applicant prior to licensure.
According to the report, the Petitioner has taken the Flex exam on four occasions prior to January 31, 1992.
In June 1976, the Petitioner took and failed the FLEX examination in North Carolina. At no time has the Petitioner disclosed that he had taken and failed the FLEX exam in North Carolina.
The Petitioner has taken the FLEX examination three times in Georgia. He failed the examination on attempts made in December 1976 and June 1977. He passed the Flex exam in Georgia in December 1977. The Petitioner has disclosed only that he had twice taken the exam in Georgia and has asserted that he passed the exam on his second attempt.
The Petitioner suggested at hearing that he was confused by the dates of examination and asserted that he had not intended to misrepresent the facts. The assertion is not credible.
The evidence establishes that the Petitioner has submitted false statements in the affidavit accompanying his 1991 licensure application.
The evidence further establishes that the Petitioner has submitted false statements regarding his experience with the FLEX examination since the time of his initial application for licensure by the State of Florida.
LACK OF CANDOR IN THE TESTIMONY PROVIDED TO THE BOARD'S CREDENTIALS COMMITTEE
No transcript of the proceedings before the Board's Credentials Committee was offered or admitted into evidence at the hearing. There is no evidence to support the Board's position that the Petitioner demonstrated a lack of candor in the testimony provided to the committee.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner has the burden of proving that he is entitled to licensure by examination. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA 1977). Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.
Section 458.311, Florida Statutes, governs applications fro licensure as a physician by examination and provides in part as follows:
Any person desiring to be licensed as a physician shall apply to the department to take the licensure examination. The department shall examine each applicant whom the board certifies:
* * *
(d) Has not committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 448.331.
In relevant part, Section 458.331, Florida Statutes, provides as follows:
The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may be taken:
Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations,
or through an error of the department or the board.
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....The licensing authority's acceptance of a physician's relinquishment of a license, stipulation, consent order, or
other settlement, offered in response to or in anticipation of the filing of administrative charges against the physician's license,
shall be construed as action against the physician's license.
Being convicted of 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 the ability to practice medicine.
* * *
(gg) Misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure.
* * *
When the board finds any person guilty of any of the grounds set forth in subsection
, including conduct which would create a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:
Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.
The evidence in this case establishes that the Petitioner has been entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or the ability to practice medicine. The criminal charge of witness tampering in a medical malpractice case in which the Petitioner is a party is a crime which directly relaters to the practice of medicine.
The evidence also establishes that the Petitioner has repeatedly concealed the totality of his experience with the FLEX exam and appears to have done so since first being licensed. By doing so, the Petitioner has attempted to obtain a license to practice medicine by fraudulent misrepresentations and has continuously misrepresented or concealed a material fact during the licensing or disciplinary process or procedure.
The Board asserts that the Petitioner's application should be further denied because the Petitioner's prior license was revoked, suspended, or otherwise acted against by the licensing authority of any jurisdiction. Although the statute does provide that such grounds are sufficient to warrant revocation or suspension, the Petitioner has completed the penalties set forth in the relevant orders.
The Petitioner's prior disciplinary orders do not preclude him from applying for re-licensure and alone would not be sufficient to justify denial of the application. In this case, the orders do not stand alone, but are supported by facts which trigger the application of other disciplinary criteria for which the agency may deny the request for application for re-licensure.
Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order denying the application of Briccio Dizon Valdez for medical licensure by examination.
DONE and RECOMMENDED this 25th day of April, 1994, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
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 April, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5581
To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.
Petitioner
The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
9. Rejected, irrelevant.
11. Rejected, irrelevant.
14. Rejected, argumentative, not supported by the greater weight of the evidence. The cited Georgia Final Order does not state that the Georgia license is subject to restoration upon reinstatement of the Florida license. The Georgia order provides that upon revocation, the license "shall not be subject to restoration." The order also provides that should the Respondent wish to return to medical practice in Georgia, the Georgia board may impose such conditions or restrictions as are deemed necessary for the protection of the public.
25-28. Rejected, irrelevant.
30. Rejected, conclusion of law.
31-33. Rejected, irrelevant, not at issue in this proceeding.
36. Rejected, conclusion of law.
37-39. Rejected, irrelevant, not at issue in this proceeding.
40. Rejected, irrelevant.
Respondent
The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
17. Rejected, unnecessary.
COPIES FURNISHED:
Dr. Marm Harris, Executive Director Board of Medicine
Department of Business
and Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, FL 32399-0792
Jack McRay
Acting General Counsel Department of Business
and Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, FL 32399-0792
Paul Watson Lambert, Esquire Michael I Schwartz, Esquire
2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749
Gregory A. Chaires, Esquire Assistant Attorney General PL-01, The Capitol
Tallahassee, Florida 32399-1050
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 ten 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.
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DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
BRICCIO DIZON VALDEZ, M.D., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
vs. CASE NO. 94-3174
DOAH CASE NO. 92-5581
BOARD OF MEDICINE,
Appellee.
/ Opinion filed May 11, 1995.
Appeals from orders of the State of Florida, Division of Administrative Hearings.
Carl Bruce Cribbs, Baker Correctional Institution, Olustee, for appellants. Ann Cocheu, Assistant Attorney General, Tallahassee, for appellee.
PER CURIAM.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable Edward A. Dauer, M.D., Chairman,
Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:
BRICCIO DIZON VALDEZ
vs. Case No. 94-3174
Your Case No. 92-5581
BOARD OF MEDICINE
The attached opinion was rendered on May 11, 1995.
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable E. Earle Zehmer
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 30th day of May, 1995.
(seal) Jon S. Wheeler
Clerk, District Court of Appeal of Florida,
First District
| Issue Date | Proceedings |
|---|---|
| Oct. 18, 1996 | Final Order filed. |
| Jul. 12, 1996 | From the First DCA (Affirmed) Opinion filed. |
| May 17, 1994 | Petitioner`s Exceptions to Recommended Order filed. |
| Apr. 25, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 01/05/94. |
| Mar. 21, 1994 | Respondent`s Response to Petitioner`s Post-Hearing Motion to Supplement the Record and Motion to Strike Attachment filed. |
| Mar. 09, 1994 | Petitioner`s Proposed Recommended Order; Petitioner`s Post-Hearing Motion to Supplement the Record w/ Petitioner`s Exhibit-A pg 1of2 filed. |
| Mar. 09, 1994 | Respondent`s Proposed Recommended Order filed. |
| Feb. 21, 1994 | Petitioner`s Motion for Extension of Time Until March 9, 1994 to File Proposed Recommended Order filed. |
| Jan. 24, 1994 | Transcript filed. |
| Jan. 05, 1994 | CASE STATUS: Hearing Held. |
| Jan. 03, 1994 | (joint) Prehearing Stipulation filed. |
| Dec. 22, 1993 | Notice of Filing Answers to "Respondent`s Amended First Request for Admissions and Interrogatories to Petitioner"; Notice of Filing Answers to "Respondent`s First Set of Expert Interrogatories to Petitioner`s"filed. |
| Dec. 13, 1993 | Order Establishing Prehearing Procedure sent out. |
| Oct. 27, 1993 | Notice of Service of Respondent`s Amended Request for Admissions and First Interrogatories to Petitioner; Notice of Substitution of Counsel;Respondent`s Amended First Request for Admissions and First Set of Interrogatories to Petitioner w/cover ltr filed. |
| Oct. 15, 1993 | (Respondent) Notice of Substitution of Counsel filed. |
| Oct. 15, 1993 | (Respondent) Notice of Substitution of Counsel filed. |
| Oct. 13, 1993 | Respondent`s First Set of Expert Interrogatories to Petitioner`s; Respondent`s First Request for Admissions and First Set of Interrogatories to Petitioner; Notice of Service of Respondent`s Request for Admissions and First Trial Interrogatories to Petitio |
| Sep. 15, 1993 | Order Continuing Hearing sent out. (hearing date to be rescheduled at a later date) |
| Sep. 15, 1993 | Amended Notice of Hearing sent out. (hearing set for 1/5/94; 10:00am;Jacksonville) |
| Sep. 07, 1993 | (Petitioner) Motion for Continuance Hearing Set for December 6, 1993 filed. |
| Aug. 24, 1993 | Order sent out. (Hearing continued until 12/6/93) |
| Aug. 24, 1993 | Amended Notice of Hearing sent out. (hearing set for 12/6/93; 10:00am; Jacksonville) |
| Aug. 20, 1993 | Joint Motion for Continuance of Hearing Set for September 9, 1993 filed. |
| May 14, 1993 | Notice of Substitution of Counsel (filed by C. Dryfuss) filed. |
| Apr. 29, 1993 | Order sent out. (request for change of venue is granted) |
| Apr. 29, 1993 | Amended Notice of Hearing sent out. (hearing set for 9-9-93; 2:00pm; Jacksonville) |
| Apr. 27, 1993 | (Petitioner) Motion for Continuance Hearing Set for May 17, 1993 and Request for Change of Venue filed. |
| Jan. 14, 1993 | Amended Notice of Hearing sent out. (hearing set for 05/17/93;1:00pm;Gainesville) |
| Jan. 14, 1993 | Order sent out. (motion and request granted) |
| Jan. 13, 1993 | (Petitioner) Motion for Continuance Hearing Set for February 12, 1993 and Request for Change of Venue filed. |
| Jan. 04, 1993 | (Petitioner) First Request for Production filed. |
| Nov. 06, 1992 | Order sent out. (parties shall file their prehearing stipulation no later than 1-22-93) |
| Nov. 06, 1992 | Notice of Hearing sent out. (hearing set for 2-12-93; 10:00am; Tallahassee) |
| Sep. 24, 1992 | Petitioner's Response to Initial Order filed. |
| Sep. 15, 1992 | Initial Order issued. |
| Sep. 11, 1992 | Agency referral letter; Order; Petition for Formal Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 25, 1996 | Agency Final Order | |
| May 11, 1995 | Opinion | |
| Apr. 25, 1994 | Recommended Order | Nolo plea in witness tampering incident related to med mal case is grounds for refusal to license. |
