STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 95-5535

) CHARLES HARRY KENT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on April 11, 1996, in Fort Pierce, Florida.

APPEARANCES

For Petitioner: Albert Peacock

Senior Attorney

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: No Appearance.

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

This case began on August 28, 1995, when the Agency for Health Care Administration (Agency) filed an administrative complaint against the Respondent, Charles Harry Kent. Such complaint alleged that Respondent had failed to pay an administrative fine required by a final order entered in another proceeding against this Respondent; and had failed to respond to mail forwarded to the address maintained by the Agency for this Respondent. An election of rights was executed by the Respondent which disputed the allegations of fact contained in the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

The matter was forwarded to the Division of Administrative Hearings for formal proceedings on November 3, 1995. At the hearing, the Agency presented

the testimony of Daryl Fruth, an investigator employed by the Agency. Its exhibits marked for identification as Petitioner's A through D were received into evidence.

The Respondent did not appear for the hearing and no evidence was presented on his behalf. Notice of the hearing was provided to Respondent at his last known address. Such notice has not been returned to the Division of Administrative Hearings as undelivered.

A transcript of the proceeding was filed on April 22, 1996. Specific rulings on the proposed findings of fact submitted by Petitioner are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. The Respondent, Charles Harry Kent, is a licensed physician in the State of Florida, license no. ME 0037235.

   
   

2. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed physicians.

   
   

3. In connection with a prior disciplinary case against this Respondent the Agency issued a final order placing the Respondent on two years probation and requiring Respondent to pay an administrative fine in the amount of

   $2,000.00.

   
   

4. Such fine was to be paid not later than March 5, 1995.

   
   

5. As of March 28, 1996, the Respondent had not paid the administrative fine nor had he provided any explanation for the failure to timely remit payment.

   
   

6. Efforts to notify the Respondent regarding the unpaid fine were unanswered by the Respondent.

   
   

7. Ultimately, the administrative complaint in this case was filed against the Respondent and notice of the non-payment provided by way of allegations set forth in paragraphs 6 through 12.

   
   

8. On October 3, 1995, the Respondent executed an election of rights which disputed the allegations and listed his address as 3605 Juan Ortiz Circle, Fort Pierce, Florida 34947.

   
   

9. Attempts to personally contact this Respondent by an Agency investigator proved fruitless.

   
   

10. Respondent has not responded to mail addressed to his address of record.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. 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:

       * * *

       (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.

       * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

       * * *

       (b) Revocation or suspension of a license.

       * * *

       (d) Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       * * *

       (f) Placement of the physician on pro- bation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the super- vision of another physician.

       
       

13. In this case the Agency bears the burden of proof to establish by clear and convincing evidence the factual allegations of the complaint. It has met that burden.

    
    

14. Respondent has failed or otherwise refused to pay an administrative fine required by a final order. This failure has not been explained nor excused due to any circumstance occurring subsequent to the entry of the final order. That Respondent chooses to ignore notifications regarding such failure further evidences his willful disregard for an order of the Board of Medicine.

    
    

15. In this case, the Agency has proved by clear and convincing evidence that the Respondent did not timely pay the administrative fine and is, therefore, guilty of violating Section 458.331(1)(x), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Agency for Health Care Administration, Board of Medicine, enter a final order suspending Respondent's medical license until such time as the administrative fine at issue in this cause is paid in full; imposing an additional fine in the amount of $5,000.00; and extending Respondent's period of probation by an additional two years.

DONE AND ENTERED this 16th day of May, 1996, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5535

Rulings on the proposed findings of fact submitted by Petitioner:

1. Paragraphs 1 through 10 are accepted.

Rulings on the proposed findings of fact submitted by Respondent:

1. None submitted.

COPIES FURNISHED:

Albert Peacock Senior Attorney

Agency for Health Care Administration

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Charles Harry Kent, M.D. Post Office Box 2478

Fort Pierce, Florida 34947

Dr. Marm Harris Executive Director Agency for Health Care

Administration, Board of Medicine Division of Medical Quality

Assurance Boards

1940 North Monroe Street Tallahassee, Florida 32399-0342

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: 95-005535

Orders for Case No: 95-005535