STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5972

)

MICHAEL GILBERT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 25 and 26, 1994, in Miami, Florida, before J. Stephen Menton, a duly designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Monica L. Felder, Esquire

Arthur B. Skafidas, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Joseph Paglino, Esquire

11601 Biscayne Boulevard, Suite 301 North Miami, Florida 33181

STATEMENT OF THE ISSUES

The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violation of Section 458.331(1)(c), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.

PRELIMINARY STATEMENT

On July 23, 1993, Petitioner 1/ filed a one count Administrative Complaint charging Respondent with violating Section 458.331(1)(c), Florida Statutes, as a result of his being convicted or found guilty of or entering a plea of nolo contendere to, regardless of adjudication, a crime which is directly related to the practice of medicine or the ability to practice medicine. The charge was based upon Respondent's plea of nolo contendere on or about February 23, 1993 to a violation of Section 777.04(4)(d), Florida Statutes. The circumstances leading to plea referred to in the Administrative Complaint are set forth in the Findings of Fact below.

Respondent denied the allegations of the Administrative Complaint and timely requested a formal administrative hearing on the charge. The case was referred to the Division of Administrative Hearings (DOAH) which noticed and conducted a hearing pursuant to Section 120.57, Florida Statutes. The case was originally assigned to Hearing Officer William J. Kendrick, who ruled on numerous prehearing motions filed by the parties including Petitioner's Motion to Remand, Petitioner's Motion to Take Official Recognition, Respondent's Motion to Take Official Recognition, Respondent's Motion in Limine, Respondent's Third Motion to Dismiss and Respondent's Suggestion of Disqualification. Shortly before the hearing, the case was transferred to the undersigned Hearing Officer who conducted the hearing. At the commencement of the hearing, the parties were advised that the rulings entered by Hearing Officer Kendrick would be considered the law of the case and would not be revisited.

At the hearing, Respondent submitted a copy of a Second Motion to Dismiss which he claimed had been filed with DOAH but had not been ruled upon by Hearing Officer Kendrick. The Second Motion to Dismiss was not in the DOAH file at the time of the hearing. Several of the matters raised in the Second Motion to Dismiss were addressed during the course of the hearing. Other issues were deferred for consideration until the parties had an opportunity to address the matters in their posthearing submittals. After reviewing the Second Motion to Dismiss and the arguments submitted by the parties during and subsequent to the hearing, the undersigned has concluded that none of the arguments raised in the Second Motion to Dismiss have merit and, consequently, that Motion is denied.

Among the various arguments raised in the Second Motion to Dismiss was a contention that the presentation of evidence by Respondent at the hearing would interfere with his protection against self-incrimination and his right to counsel contrary to the Fifth and Sixth Amendments to the U.S. Constitution.

Specifically, Respondent argued that the Fifth Amendment protected him from being compelled to testify regarding his plea and that his attorney, who represented him in both the criminal proceeding and this administrative proceeding, should not be placed in a position of having to testify.

Respondent's request that this proceeding be summarily dismissed without any evidence being presented was denied by the undersigned Hearing Officer. The parties were allowed to address these issues in their posthearing submittals. After both parties rested their cases counsel for Respondent requested an opportunity to testify regarding the circumstances surrounding Respondent's entry of the nolo contendere plea. This request was granted over Petitioner's objection.

Respondent also argued that Section 458.331(1)(c), Florida Statutes, violates the U.S. Constitution since the Agency has not promulgated a standard for determining whether Respondent pled nolo contendere because he was innocent or guilty. In this regard, Respondent objected to the presumption of guilt implicit in the statute following a plea of nolo contendere. The undersigned advised the parties during the course of the hearing that the constitutionality of the statute in question could not be resolved in this proceeding. See, Palm Harbor Special Fire Control District v. Kelly, 516 So.2d 249 (Fla. 1987). The constitutional limitations on the use of a nolo contendere plea in a license disciplinary case were explored in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985). Petitioner's application and interpretation of Section 458.331(1)(c), Florida Statutes, in the present case has not been shown to be inconsistent with the requirements outlined in the Ayala decision. The Ayala decision implicitly recognizes a distinction between the state's exercise of its police power in the area of criminal prosecutions and the exercise of administrative regulatory authority over licensed

professionals. Thus, Respondent's suggestion that the filing of the Administrative Complaint in this case constitutes a breach of the plea agreement would appear to be erroneous. See Farhud v. Clark, 399 So.2d 1079 (Fla. 1st DCA 1981). However, that issue is beyond the scope of this proceeding.

Respondent's Second Motion to Dismiss included a contention that Petitioner and/or DOAH have not maintained a subject-matter index as required by Section 120.53(2), Florida Statutes. This issue was initially raised with Hearing Officer Kendrick who denied Respondent's Third Motion to Dismiss in an Order dated May 23, 1994. Respondent has not provided any basis for modifying or receding from that Order. It should be noted that Respondent never properly requested a copy of any index from either DOAH or Petitioner and the record in this case is devoid of any evidence as to the sufficiency of the indexes maintained by Petitioner and/or DOAH.

At the hearing, Petitioner presented the testimony of three witnesses: Dr.

Gary R. Schwartz, who was accepted over Petitioner's objection as an expert in psychology (Dr. Schwartz was a court-appointed Psychologist who examined Respondent prior to the underlying criminal proceedings); Detective Kennedy Rosario of the Metro-Dade Police Department; and Assistant State Attorney Russell Killinger, who was the prosecutor in the criminal case which resulted in the plea referenced in the Administrative Complaint. Respondent objected to Mr. Killinger being allowed to testify on the grounds that it was a breach of the plea agreement and that his testimony was not admissible under Section 90.410, Florida Statutes. Mr. Killinger was permitted to testify over Respondent's objections. The parties were directed to address the scope and applicability of Section 90.410, Florida Statutes in their posthearing submittals. That issue is addressed in the conclusions of law below.

Petitioner offered eleven (11) exhibits into evidence. Respondent objected to Petitioner's exhibits 2 through 11. Hearing Officer Kendrick had previously entered an order taking official recognition of Petitioner's exhibits 2 and 3 and, consequently, those exhibits were accepted. Respondent's objections to Petitioner's Exhibits 5 through 11 were overruled. Thus, all of Petitioner's Exhibits were accepted into evidence during the course of the hearing except Petitioner's Exhibit 4, which was the deposition of Dale Bowlin. Ruling on the admissibility of that exhibit was reserved and the parties were afforded an opportunity to present legal argument on the admissibility of that deposition subsequent to the hearing. As set forth in an Order entered on July 11, 1994, the objections to that exhibit were overruled and the deposition was accepted.

Respondent did not present any witnesses during the hearing on May 25, 1994 except, Respondent's counsel who was allowed to testify on May 26, 1994 over Petitioner's objections. Respondent offered nine (9) exhibits into evidence, all of which were accepted. Petitioner's relevancy objections to Respondent's Exhibits 8 and 9 were overruled. During the hearing, Respondent had marked as Respondent's Exhibits 1 and 2 the depositions of two psychiatrists who testified regarding Respondent's sanity at his criminal trial. Petitioner's objections to those depositions were overruled; however, Petitioner was granted an opportunity to supplement the Exhibits with portions of the testimony of the witnesses during Respondent's criminal trial. At the conclusion of the hearing, the parties agreed to substitute the trial testimony of those witnesses for the depositions. Accordingly, only the trial testimony was submitted and the testimony has been reviewed and considered.

During the hearing, Respondent requested and was granted an opportunity to submit the deposition of Dr. Schwartz, who was Petitioner's witness, as a late- filed exhibit. As of the date of this Recommended Order, that deposition has not been submitted.

Subsequent to the hearing, Petitioner filed a Motion for Attorney's Fees in connection with several of the prehearing motions filed by Respondent.

Respondent's Objection to Petitioner's Motion for Attorney[s] and Respondent's Cross-Motion for Attorney[s] Fees was filed on August 1, 1994. Petitioner filed Petitioner's Response to Respondent's Motion for Attorney's Fees on August 10, 1994. After considering the file in this matter and the arguments raised by the parties in their submittals, all requests for attorney's fees are denied.

Several of the prehearing motions filed by Respondent reflect a fundamental misunderstanding of the administrative adjudicatory process. All of those motions were summarily denied by Hearing Officer Kendrick. Some of the duplicative and extraneous motions filed by Respondent arguably contravene the standards set forth in Rule 11 of the Federal Rules of Civil Procedure.

However, Section 120.57(1)(b)5 has been interpreted to incorporate a different standard and to reach only those papers filed for an improper purpose. See Mercedes Lighting and Electric Supply, Inc. v. Department of General Services,

560 So.2d 272, (Fla. 1st DCA 1990). It cannot be concluded from the record in this case that the motions were filed for an improper purpose as required by Section 120.57(1)(b)(5), Florida Statutes.

A transcript of the proceedings had been filed. Both parties have submitted proposed findings of fact and conclusions of law. Respondent initially filed Respondent's Proposed Findings of Fact and Conclusions of Law on August 24, 1994. At the same time, Respondent filed a Motion for Extension of Time and a Notice to Compel Production of Transcripts alleging that Respondent had not received a copy of the transcript of the hearing. Subsequently Respondent was provided with a copy of the transcript and Respondent filed Respondent's Amended Proposed Findings of Fact and Conclusions of Law. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was a licensed physician in Florida having been issued license number ME 0004260. It is clear that Respondent was licensed to practice medicine in the State of Florida sometime prior to 1973. There are some indications in the record that Respondent has been licensed since approximately 1949. However, no conclusive evidence was presented on this point.

   
   

2. There is no evidence of any prior disciplinary action against Respondent's medical license except for the charges in DOAH Case No. 93-2858 which was heard immediately after the hearing in this case. A Recommended Order in that case has been issued this same date.

   
   

3. Although no conclusive evidence was presented in this case, the record in Case No. 93-2858 established that Respondent is certified by the American Board of Psychiatry and Neurology and that he also holds a Ph.D. in psychology and is a licensed psychologist.

4. During 1989 and 1990, Respondent encountered a number of personal problems, including the loss of two brothers, the diagnosis of a sister with cancer, involvement in a number of bad business deals and significant tax problems with the IRS.

   
   

5. From late 1989 until approximately February, 1990, Respondent treated a patient named Dale Bowlin for migraine headaches. During this period, Respondent saw Mr. Bowlin approximately thirty times in a professional capacity. Respondent knew that Dale Bowlin was an Assistant Director of the Metro-Dade Police Department.

   
   

6. On or about August 23, 1990, Respondent called Dale Bowlin and asked Mr. Bowlin to come to his office to discuss an urgent matter.

   
   

7. Pursuant to Respondent's request, Mr. Bowlin met with Respondent on or about August 24, 1990 at Respondent's office located at N.W. 31st Avenue and 7th Street, Miami, Florida. During that meeting, Respondent asked Mr. Bowlin to find someone to "plant" illegal narcotics on a local attorney, later identified as Arthur Spiegel, in order to have him arrested. Respondent indicated that Mr. Spiegel was married to the daughter of a social acquaintance of Respondent and stated that he had provided marriage counseling to Mr. Spiegel and his former wife. Respondent expressed a great deal of concern that Mr. Spiegel's alleged ability to manipulate the legal system during a difficult custody battle that occurred when the Spiegels dissolved their marriage. Respondent felt that Mr. Spiegel had been abusive during the marriage and was not a very good father.

   The evidence presented in this case established that Respondent was obsessed with finding some way to correct what he perceived to be the deferential or favored treatment that Mr. Spiegel received in the custody dispute. Respondent even hinted that Mr. Spiegel should be severely injured or killed. However, the evidence did not establish that Respondent ever seriously pursued those goals.

   Instead, he focused on having Mr. Spiegel "set up" and arrested.

   
   

8. After returning to his office, Mr. Bowlin discussed Respondent's expressed desires with other members of the police department. A plan was devised to send another police officer, Kennedy Rosario, to meet with Respondent and pretend to cooperate with Respondent's requests. All of the subsequent meetings between Respondent and Detective Kennedy Rosario were recorded on audio tape and/or videotapes. Tapes of those meetings have been accepted into evidence.

   
   

9. On or about August 27, 1990, Detective Kennedy Rosario of the Metro- Dade Police Department went to Respondent's office. During that meeting, Respondent offered Detective Rosario five thousand dollars ($5,000.00) to falsely arrest Mr. Spiegel for possession of drugs, specifically cocaine. Respondent wrote Mr. Spiegel's name and address on a page of Respondent's prescription pad and gave it to Detective Rosario.

   
   

10. Respondent met for a second time with Detective Rosario at approximately 6:30 p.m. on August 27, 1990, at which time Respondent gave Detective Rosario additional information on Arthur Spiegel.

    
    

11. Respondent's last meeting with Detective Rosario took place at approximately 4:00 p.m. on August 28, 1990, at which time Respondent told Detective Rosario that the drugs should be found on Mr. Spiegel and Mr. Spiegel should be arrested while Mr. Spiegel had his child with him. During that final

    meeting, Respondent gave Detective Rosario two thousand dollars ($2,000.00) as partial payment for setting up Mr. Spiegel to be arrested for possession of cocaine.

    
    

12. At the conclusion of the August 28, 1990 meeting, Respondent was arrested and subsequently charged in the Eleventh Judicial Circuit in and for Dade County with two felony counts of bribery of a public official: one count was for allegedly offering money to Dale Bowlin to falsely arrest Arthur Spiegel, the second count was for allegedly offering money to Kennedy Rosario to falsely arrest Arthur Spiegel.

    
    

13. Respondent's arrest and the subsequent criminal proceedings received a great deal of media coverage and notoriety. A jury trial was conducted on the criminal charges following which Respondent was acquitted of the first bribery count involving Dale Bowlin, and found guilty of the second bribery count involving Detective Rosario. The jury did not find that Respondent was insane at the time of the alleged offense.

    
    

14. The conviction on the second count was subsequently reversed by an appellate court because the trial judge had incorrectly failed to dismiss a juror for cause.

    
    

15. The Dade County State Attorney's Office sought to retry Respondent on the second bribery count. Respondent claimed that any such retrial was precluded because, among other things, it would constitute double jeopardy. Ultimately, the prosecutor's office and Respondent's counsel agreed to a plea bargain pursuant to which the felony bribery count was nolle prossed and Respondent agreed to pled nolo contendere to a misdemeanor charge of solicitation which was set forth in an Amended Information. Respondent claims that he only agreed to the plea bargain because the felony charges were dropped and he did not want to subject himself or his family to another trial. In respect to Respondent's motivation for entering the plea, the evidence presented in this case, including the audio and video tapes, conclusively established the facts set forth herein.

    
    

16. Respondent formally entered the plea on or about February 23, 1993 in Case No. 90-34903-05 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County. Specifically, Respondent pled nolo contendere to one count of violating Section 777.04(4)(d), Florida Statutes, for requesting Kennedy Rosario to "falsify an official record or official document of the Metro-Dade Police Department with corrupt intent to ... cause unlawful harm to another".

17. Section 777.04(4)(d), Florida Statutes, provides as follows: Whoever commits the offense of criminal attempt,

    criminal solicitation, or criminal conspiracy shall be punished as follows:

    * * *

    (d) If the offense attempted, solicited, or conspired to is a felony of the third degree, the person convicted is guilty of a misdemeanor of the first degree, punishable as provided in

    s.775.082 or s.775.083.

    
    

18. The basis for the plea agreement was Respondent's alleged solicitation of Kennedy Rosario of the Metro-Dade Police Department to violate Section 839.25, Florida Statutes.

19. Section 839.25, Florida Statutes, provides as follows:

    
    

    "Official misconduct" means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another:

    (b) knowingly falsifying or causing another to falsify any official record or official document.

    * * *

    1. "Corrupt" means done with knowledge that act is wrongful and with proper motives.

    2. Official misconduct under this section is a felony of the third degree, punishable as provided in s. 775.082, s.775.083 or s.775.084.

       
       

20. The "official document" referred to in the solicitation count was the arrest warrant for Arthur Spiegel.

    
    

21. The "unlawful harm to another" described in the solicitation count referred to the harm Respondent intended to cause to Arthur Spiegel by having him falsely arrested.

    
    

22. Respondent points out that the Court accepted the plea agreement without any inquiry and without making any specific findings as to the factual or legal basis for the plea. Respondent was not present at the time the plea agreement was accepted by the Court and Respondent did not give any oral allocution as to the factual basis for the plea. The plea agreement was presented to and accepted by the same judge who presided over Respondent's criminal jury trial.

    
    

23. After the entry of the plea, the remaining felony count of bribery against Respondent was dismissed and Respondent was released without further conditions as he had already served over a year on house arrest.

    
    

24. During the course of the hearing in this case, there were suggestions by the attorneys that at some point in January 1991, Petitioner initiated proceedings against Respondent to determine his sanity as a result of some of the matters that came to light in the criminal case. Respondent was apparently examined by a psychiatrist appointed by Petitioner. The results of that examination are not part of the record of this proceeding. However, it appears that Respondent has been permitted to continue practicing medicine.

    
    

25. As a result of the jury verdict in the initial criminal proceeding, Petitioner filed an Administrative Complaint against Respondent on August 27, 1991, seeking to impose disciplinary action against Respondent on the grounds that Respondent had violated Section 458.331(1)(c), Florida Statutes. After Respondent's conviction was reversed, Petitioner issued a Closing Order on May 23, 1992, dismissing the original Administrative Complaint.

    
    

26. This present case was initiated on July 23, 1993 when Petitioner filed a new Administrative Complaint against Respondent following the entry of the nolo contendere plea to the misdemeanor charge.

    CONCLUSIONS OF LAW

    
    

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

    
    

28. Pursuant to Section 458.331, Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a registered physician who is found guilty of committing any of the offenses enumerated in Section 458.331(1), Florida Statutes.

    
    

29. The Administrative Complaint in this case charges Respondent with violating subsection (c), of Section 458.331(1), Florida Statutes. That section provides as follows:

    
    

    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.

       
       

30. Petitioner has the burden of proof in this license discipline case and must prove the allegations set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 (Fla. 1st DCA 1989); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 1st DCA 1988).

    
    

31. The nature of the clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, with-

    out hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956, 958 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds, the following:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance

    of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v.

    Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

32. In determining whether a licensee has violated Section 458.331, Florida Statutes, as charged in an administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . this being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

33. Disciplinary action with respect to a professional license is limited to offenses or facts alleged in the administrative complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129,

    133 (Fla. 5th DCA 1987).

    
    

34. The clear and convincing evidence in this case established that Respondent was guilty of violating Section 458.331(1)(c), Florida Statutes, as alleged in the Administrative Complaint.

    
    

35. The evidence established that Respondent pled nolo contendere to a misdemeanor solicitation charge. Respondent contends that the crime to which he pled does not fall within the scope of Section 458.331(1)(c). After considering all of the evidence presented, it is concluded that the crime to which the Respondent pled nolo contendere is directly related to the practice of medicine and/or the ability to practice medicine. The criminal conduct of Respondent involved at least one former patient. Thus, Respondent used the contacts he made through his practice of medicine in furtherance of illegal conduct. Furthermore, some of the activities that constituted criminal conduct occurred in Respondent's office. More importantly, it is concluded that the crime to which Respondent pled nolo contendere is directly related to the ability to practice medicine because it evinces a lack of honesty, warped judgment, and/or emotional instability.

    
    

36. In Rush v. Department of Professional Regulation, Board of Podiatry,

    448 So.2d 26 (Fla. 1st DCA 1984), the court, interpreting a similar statutory provision, upheld the suspension of a podiatrist's license following a conviction in federal court for conspiracy to possess and import marijuana. The court stated:

    
    

    The actions of Dr. Rush, which culminated in his conviction, constitute a breach of that trust and confidence which the people, through the Legis- lature, have placed in him. Dr. Rush's conduct shows a lack of honesty, integrity, and judgment, and an unwillingness to abide by the Laws of the State of Florida.

    .... By confining the convictions upon which disciplinary action may be based to those directly related to the practice of podiatry, the Legis- lature has not limited the grounds for disciplinary action to only those crimes which relate to the technical ability to practice podiatry or to those which arise out of misconduct in the office setting.

    A conviction for a crime, such as importing marijuana, which presents a danger to the public welfare will

    be adequate basis for disciplinary action to be taken against a practitioner. Id. at 27 and 28.

37. Similarly, in Greenwald, M.D. v. Department of Professional Regulation, 501 So.2d 740 (Fla. 3d DCA 1987), the court, citing Rush, affirmed an order entered pursuant to Section 458.331(1)(c) revoking a doctor's license following the doctor's conviction for solicitation to commit first-degree murder. The issue on appeal was whether the conviction "directly related to the practice of medicine or to the ability to practice medicine". The court stated that "[i]n our view Dr. Greenwald's undertaking to end a bitter marriage dissolution problem by soliciting someone to murder his ex-wife evidences warped judgment and disregard for human life - the antithesis of that which is required and expected of physicians." Id. at 741. In reaching its decision, the court relied on Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985), in which the Florida Supreme Court held that, because of a physician's constant interaction with the public, mental fitness and emotional stability are essential traits a physician must possess in order to competently practice medicine. Id. at 217. In this regard, it should be noted that in order to practice medicine in Florida, an individual must possess good moral character as well as the necessary training and experience. See, Section 458.311(1)(c), Florida Statutes. A lack of good moral character has been defined as "acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454 (Fla. 1978). Respondent in this case has evinced a warped judgment, emotional instability and a disregard for the rights of others. These characteristics casts serious doubt on Respondent's ability to practice medicine.

    
    

38. Respondent argues that Section 90.410, Florida Statutes, precludes the use of any evidence of a plea of nolo contendere in this administrative proceeding. That statute provides that evidence of a plea of nolo contendere and the circumstances surrounding the plea are inadmissible in a civil or criminal proceeding. This provision should not be interpreted to apply to an administrative proceeding initiated under Section 458.331(1)(c), Florida Statutes, which allows the Board of Medicine to impose disciplinary action based on a nolo contendere plea. Specific statutes or statutes covering a particular subject area control over general statutes, or statutes written in general terms. See, Brescher v. Associates Financial Services Co., 460 So.2d 464 (Fla. 4th DCA 1984); Florida Dept. of Health and Rehabilitative Services v. Gross, 421 So.2d 44 (Fla. 3d DCA 1982. When specific statutes conflict with general statutes, the specific statute operates as an exception to the general rule. Tribune Co. v. School Board of Hillsborough County, 367 So.2d 627 (Fla. 1979); Floyd v. Bentley, 496 So.2d 862 (Fla. 2d DCA 1986). If a hearing officer was unable to consider evidence of a nolo contendere plea, the language in Section 458.331(1)(c) allowing the Department to take disciplinary action following such a plea would not make sense. The legislation should not be construed in such a way as to render it pointless or unreasonable. See Neu v. Miami Herald Publishing Co., 462 So.2d 821 (Fla. 1985); Carawan v. State of Florida, 515 So.2d 161 (Fla. 1987). Thus, it is concluded that evidence of a nolo contendere plea is admissible in administrative proceedings under Section 458.331(1)(c). This conclusion was implicitly recognized in Ayala, supra, 478 So.2d 1116, where the court held that once the Department established that a Respondent pled nolo contendere to a crime related to the practice of medicine, the burden of proof shifted to the Respondent to introduce evidence in an attempt to convince the hearing officer or Board that he was not guilty of the crime alleged.

39. Respondent's contention that Section 458.331(1)(c) improperly shifts the burden of proof in this case is rejected. See, Ayaya, supra. In any event, Petitioner in this case has presented clear and convincing evidence of Respondent's conduct which led to the criminal charge.

    
    

40. Respondent claims that he was not guilty of the crime alleged because he was insane at the time of the criminal conduct. A person is presumed to be sane at the time a crime is committed and has the burden of proving his insanity at the time of the offense. Hixon v. State, 165 So.2d 436 (Fla. 2d DCA 1964). Respondent was not found to be legally insane at the criminal trial. Whether Respondent could have proven at a retrial that he was legally insane at the time of the crime to which he pled nolo contendere is beyond the scope of this proceeding. His admitted emotional instability, even if temporary, is a factor that should be considered by the Board in the ultimate disposition of this case.

    
    

41. The evidence in this case does indicate that Respondent knew that what he was doing was wrong. Respondent was cautious in his initial discussions with Detective Rosario. During their first meeting, Respondent asked Detective Rosario several questions concerning what he knew about the case thus far. Respondent and Detective Rosario discussed exactly what the Respondent wanted done to Mr. Spiegel, and how much trouble Respondent wanted Mr. Spiegel to get into, including how much time he would like to have Mr. Spiegel in jail and what type of drugs would lead to the most harmful or lengthy sentence. During their last meeting, Respondent said "There's nobody in God's world going to know except you and I and a little bit that the other guy knows [referring to Dale Bowlin], and that's it." Later, Respondent stated "[B]elieve me, listen, I got more at stake than you have ... everybody knows I was ... a hell of a reputation." These discussions confirm that Respondent knew what he was doing was wrong.

    
    

42. Respondent contends that the plea of nolo contendere was technically invalid on a number of grounds including the expiration of the statute of limitations, the failure to identify a victim and the failure of the Respondent to appear for allocution at the time the plea was entered. All of these factors are irrelevant. The plea was entered and the only issues that matter for purposes of this proceeding are whether Respondent in fact committed the acts which were the basis for the criminal charge and/or whether the charge directly relates to the practice of medicine.

    
    

43. Respondent claims that he only entered into the plea agreement on the advice of his attorney and that he had strong legal grounds to prevail on any subsequent retrial of the criminal charges. Respondent's various theories as to why he could not or would not have been convicted of the crime to which he entered a plea misses the point. Under Ayala, Respondent must be given an opportunity to explain the circumstances of the plea and establish his innocence of the charges. Respondent's burden was not to demonstrate that he would have been acquitted of the crime on a legal technicality if he had decided to proceed to trial. Instead, his duty under Ayala was to rebut the presumption created by the entry of the nolo plea and assert his innocence of the underlying criminal conduct by explaining the reasons and circumstances surrounding his plea of nolo contendere. In this case, Respondent did not present any evidence to establish that he did not commit the acts alleged. Whether or not Respondent would have prevailed on technical legal defenses at a subsequent criminal trial is immaterial and beyond the scope of this proceeding.

44. The disciplinary guidelines of the Board of Medicine are found at Rule 61F6-20.001 (formerly 21M-20.001), Florida Administrative Code. Those rules provide a range of penalties for a violation of Section 458.331(1)(c) from probation to revocation of a license and an administrative fine from two hundred fifty dollars ($250) to five thousand dollars ($5,000);.

    
    

45. Rule 61F6-20.001(1) provides that ". . . the purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations."

    
    

46. Rule 61F6-20.001(3) provides as follows:

    
    

    1. Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider

       as aggravating or mitigating factors the following:

       1. Exposure of patient or public to injury or potential injury, physical or otherwise; none, slight, severe, or death;

       2. Legal status at the time of the offense; no restraints or legal constraints;

       3. The number of counts or separate offenses established;

       4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

       5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

       6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

       7. Any other relevant mitigating factors.

    
    

47. In this case, Respondent has been shown to have a warped judgment that is potentially harmful to others. His actions raise specific questions as to his stability and, consequently, his ability to practice medicine. Respondent even alluded to the possibility of having Mr. Spiegel injured or killed, to his credit, he did not pursue those goals. Respondent has been licensed to practice medicine in Florida for many years (apparently more than forty (40) years) without any prior disciplinary action being taken against him. Without question Respondent has already suffered great financial and emotional strain as a result of the criminal charges. Nonetheless, the violation in this case raises serious questions as to Respondent's judgment and his ability to effectively practice medicine. Moreover, the punishment should be severe enough to be a deterrent to both the Respondent and to other licensees to prevent such acts from occurring again. Petitioner urges in its Proposed Recommended Order that Respondent's license to practice medicine in this state be revoked; however, permanent revocation is a harsh punishment reserved for egregious cases where rehabilitation is improbable. See, The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of

violating Section 458.331(1)(c), Florida Statutes, as alleged in the Administrative Complaint. As a penalty for the violation, Respondent's license to practice medicine should be suspended for one (1) year followed by a three- year term of probation. The suspension should be stayed if and when Respondent can demonstrate to the Board that he is currently of good moral character and emotionally stable enough to safely practice medicine. In addition, an administrative fine in the amount of two thousand dollars ($2,000) should be imposed.

DONE AND RECOMMENDED this 24th day of May, 1995, in Tallahassee, Leon County, Florida.

J. STEPHEN MENTON 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 24th day of May, 1995.

ENDNOTE

1/ The Administrative Complaint was filed by the Department of Professional Regulation. Effective July 1, 1994, the Board of Medicine was transferred to the Agency for Health Care Administration pursuant to Section 20.42, Florida Statutes (1993).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5972

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Subordinate to findings of fact 7.

2. Adopted in substance in findings of fact 9.

3. Adopted in substance in findings of fact 10.

4. Adopted in substance in findings of fact 11.

5. Adopted in substance in findings of fact 11.

6. Adopted in substance in findings of fact 12.

7. Adopted in substance in findings of fact 13.

8. Adopted in substance in findings of fact 14.

9. Adopted in substance in findings of fact 16.

10. Adopted in substance in findings of fact 20.

11. Adopted in substance in findings of fact 21.

12. Adopted in substance in findings of fact 23.

Rulings on the proposed amended proposed findings of fact and conclusions of law submitted by the Respondent.

1. Rejected as unnecessary.

2. Adopted in substance in findings of fact 1-3.

3. Subordinate to findings of fact 16 and 22.

4. Subordinate to findings of fact 22.

5. Rejected as unnecessary.

6. Rejected as unnecessary.

7. Subordinate to findings of fact 23.

8. Rejected as unnecessary.

9. Rejected as unnecessary.

10. Rejected as unnecessary. The subject matter is addressed in the Conclusions of Law.

11. Adopted in substance in findings of fact 16-19.

12. Rejected as unnecessary and as argument rather than a finding of fact.

13. The first sentence is adopted in findings of fact 8-12. The remainder of this proposal is rejected as vague, speculative, and is constituting argument.

14. Rejected as unnecessary and is constituting argument.

15. Rejected as unnecessary and argumentative.

16. Rejected as unnecessary and argumentative.

17. Adopted in substance of findings of fact 15.

18. Subordinate to findings of fact 15.

19. Rejected as speculative and argumentative and subordinate to findings of fact 15.

20. Rejected as speculative, argumentative and unnecessary.

21. Rejected as unnecessary.

22. Rejected as unnecessary.

23. Subordinate to findings of fact 13 and 14.

24. Rejected as speculative, argumentative and unnecessary.

25. Rejected as unnecessary.

26. Rejected as unnecessary.

27. Rejected as unnecessary.

28. Rejected as unnecessary.

29. Rejected as unnecessary.

30. Rejected as unnecessary.

31. Subordinate to findings of fact 13.

32. Rejected as unnecessary and subordinate to findings of fact 13.

33. Rejected as unnecessary.

34. Rejected as a mis-characterization of the evidence and unnecessary.

35. Subordinate to findings of fact 24.

36. Rejected as unnecessary.

37. No proposal submitted.

38. Rejected as unnecessary.

39. Rejected as unnecessary.

40. Rejected as unnecessary.

41. Rejected as unnecessary.

42. Rejected as unnecessary.

43. Rejected as argumentative and unnecessary.

44. Subordinate to findings of fact 14.

45. Subordinate to findings of fact 14.

46. Adopted in substance of findings of fact 4.

47. Rejected as unnecessary.

48. Subordinate to findings of fact 14.

49. Rejected as speculative, argumentative and unnecessary.

50. Rejected as speculative, argumentative and unnecessary. This subject matter is addressed in part of findings of fact 14.

COPIES FURNISHED:

Douglas M. Cook, Director Agency for Health Care

Administration 2727 Mahan Drive

Tallahassee, FL 32308

Tom Wallace, Assistant Director Agency for Health Care

Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

Arthur B. Skafidas, Esq. Monica L. Felder Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Joseph Paglino, Esquire Suite 301

11601 Biscayne Boulevard North Miami, Florida 33181

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: 93-005972

Orders for Case No: 93-005972