Dean, duly designated Administrative Law Judge of the Division of Administrative Hearings, on February 18, 1997, in Tallahassee, Florida.
For Petitioner: Joseph S. Garwood, Esquire
For Respondent: Richard Lee Plagenhoef, M.D.
Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Medicine issued a letter of reprimand to Respondent for dispensing and/or prescribing anabolic steroids. On February 16, 1996, the Agency issued a three count Administrative Complaint against the Respondent, a Florida-licensed medical doctor, alleging that he violated Section 458.331(1)(b), Florida Statutes, in that he had an action taken against his license to practice medicine in the State of Michigan; Section 458.331(1)(kk), Florida Statutes, in that he failed to notify the Florida Board of Medicine of said action within thirty (30) days of the action; and Section 458.331(1)(x), Florida Statutes, in that he failed to maintain his current address with the Florida Board of Medicine. By Final Order number AHCA96-00464, the Respondent's license had been previously suspended indefinitely. The agency requests the revocation of the Respondent's license on this occasion.
The Respondent denied the allegations of the Administrative Complaint by a letter dated May 20, 1996. By notice of hearing dated October 24, 1996, the case was set for hearing on February 18, 1997.
At the hearing, the Agency presented the live testimony of two witnesses, Crystal Griffin, who testified that Respondent failed to notify the Florida Board of Medicine of the action taken against his license to practice medicine by the Michigan Board of Medicine; and Denise Love, who testified that Respondent
failed to maintain his current address with the Florida Board of Medicine.
The respondent did not appear and was not represented by counsel although the record reflects he received notice at the address he gave in his letter to the Board.
The Agency also presented a certified copy of the Final Order from the Michigan Board of Medicine (Petitioner's Exhibit No. 1), a copy of the Florida Board's final order (Petitioner's Exhibit No. 2) and a copy of a letter to Ms. Lammert from Respondent (Petitioner's Exhibit No. 3).
The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes.
Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126.
The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan.
On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting.
Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan.
The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him.
On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas.
On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing.
Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address.
The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.
Notice was provided to the Respondent at the address he provided in his letter requesting a hearing.
In this disciplinary licensing proceeding, the Agency has the burden to prove the alleged violations of Section 458.331(1)(b), 458.331(1)(kk), and 458.331(1)(x), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987); Pic N' Save v. Department of Business and Professional Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992).
At all times material to the instant case, Section 458.331(1)(b), Florida Statutes, authorized the taking of disciplinary action against a Florida-licensed physician for "having action taken against his license to practice medicine by another jurisdiction."
At all times material to the instant case, Section 458.331(1)(kk), Florida Statutes, authorized the taking of disciplinary action against a Florida-licensed physician for "failure to report disciplinary action by another jurisdiction."
At all times material to the instant case, Section 458.319, Florida Statutes, provided that prior to changing the
address of his primary place of practice, whether or not within this state, the licensee shall notify the Department of the address of his new primary place of practice. Section 458.331(1)(x), Florida Practice, provides that the Department or Board may discipline a licensee for violating the general provisions of Chapter 458, Florida Statutes.
Petitioner's Exhibit 1 was a certified copy of the Final Order of the Department of Commerce of the State of Michigan disciplining Richard L. Plagenhoef. The Respondent violated Section 458.331(1)(b), Florida Statutes.
The testimony of Ms. Griffin and Ms. Love shows that Respondent failed to report the action of the Michigan Board to the agency contrary to Section 458.331(1)(kk), Florida Statutes, and that the Respondent had changed the address of his practice without advising the Department of his new address prior to the change contrary to Section 458.319(3), Florida Statutes.
Section 458.331(2), Florida Statutes, authorizes the Board to impose one or more of the following penalties for a violation of Section 458.331(1):
license revocation; license suspension; restriction of practice; an administrative fine not to exceed $5,000.00 for each count or separate offense; a reprimand; probation; a letter of concern; corrective action; and a refund of fees billed to and collected from the patient.
In determining which of these penalties the Board should impose, it is necessary to consult Chapter 59R-8.001,
Florida Administrative Code, which contains the disciplinary guidelines adopted by the Board.
For a "single count violation" of subsection (1)(b) of Section 458.331, Florida Statutes, the normal "range of penalties prescribed by subsection (2) of Rule 59R-8.001, Florida Administrative Code, ranges from imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $250.00 to $5,000.00.
For violation of subsection (1)(kk) the normal "range of penalties" is from denial or revocation of license with ability to reapply upon payment of $1,000.00 fine to denial or revocation of license without ability to reapply.
Subsection (3) of Rule 59R-8.001, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.
Among the mitigating or aggravating circumstances which, subsection (3) of Rule 59R-8.001, Florida Administrative Code, states may warrant such a deviation are "The disciplinary history of the . . . licensee in any jurisdiction and the length of practice;" and "Any other relevant mitigating factors."
The record reflects that Florida Board has previously disciplined the Respondent for a serious substantive violation of Florida law. The Respondent’s Florida license is currently suspended, and he now has been disciplined by Michigan for a substantive violation of that state’s law regarding the prescribing of steroids. The Respondent failed to report that violation to Florida as required and failed to report his change of address to Texas as required. The pattern involved reflects an inability to practice safely and in compliance with the law governing the practice of medicine.
