STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) Case No: 98-4865

)

JOSEPH FORLIZZO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Carolyn S. Holifield, held a formal hearing in the above-styled case on October 26, 1999, in Tampa, Florida.

APPEARANCES

For Petitioner: James A. G. Davey, Jr., Esquire

Agency of Health Care Administration 2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent: Timothy E. Leahy, Esquire

Leahy and Associates, P.A.

535 Central Avenue, Suite 300 St. Petersburg, Florida 33701

STATEMENT OF THE ISSUES

Whether Respondent violated Section 460.413(1)(c), Florida Statutes; and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On January 9, 1996, an Administrative Complaint was filed against Respondent, Joseph Forlizzo, alleging that Respondent

violated Section 460.413(1)(c), Florida Statutes, by being convicted or found guilty of a crime in any jurisdiction which relates to the practice of chiropractic.

At hearing, Petitioner, Department of Health, Board of Chiropractic, renewed its previously filed Motion to Relinquish Jurisdiction, subject to two stated amendments. Petitioner first moved to amend paragraph 9 of the Motion to Relinquish Jurisdiction to read as follows: "Respondent admitted that conviction of conspiracy to collect an extension of credit by extortionate means involved the use of actual or threatened force or violence against the person of another." Petitioner then made an ore tenus motion to strike from paragraph 11 of the Motion to Relinquish Jurisdiction the following sentence: "It is the legislative intent that practitioners who fall below the minimum competence, or who otherwise present a danger to the public welfare be prevented from practicing in the state." Petitioner was allowed to amend the Motion to Relinquish Jurisdiction.

Following argument of counsel for both parties, the Motion to Relinquish Jurisdiction was denied.

At Petitioner's request, the undersigned took official recognition of all statutes and rules relating to the practice of chiropractic. Petitioner requested and the undersigned agreed to adopt as findings of fact those numbered items admitted by Respondent in the response to Petitioner's First Request for Admissions.

At hearing, Petitioner presented the testimony of one witness, Dr. Robert Samuel Butler, Jr., who was accepted as an expert in the field of chiropractic medicine. Petitioner offered and had four exhibits received into evidence. Respondent called no witnesses and offered no exhibits.

A Transcript of the proceeding was filed on November 12, 1999. Petitioner filed a Proposed Recommended Order on December 8, 1999. No post-hearing submittal was filed by Respondent.

FINDINGS OF FACT

1. Respondent, Joseph Forlizzo, is, and has been at all times material hereto, a chiropractor licensed in the State of Florida, having been issued license number CH-0003278.

2. Petitioner, Department of Health, Board of Chiropractic, is the state agency that licenses and has regulatory jurisdiction of chiropractors. Section 20.43, Florida Statutes; Chapter 455, Part II, Florida Statutes; and Chapter 460, Florida Statutes.

3. On September 3, 1996, in the United States District Court for the Middle District of Florida, Case

   No. 95-132-CR-T-24(E), Respondent was convicted of conspiracy to collect an extension of credit by extortionate means as defined in Title 18, United States Code, Section 891, from Michael Muzio and Wesley Earl Ball by express and implicit threats and acts of violence and other criminal means to cause harm to the person,

   property, and reputation of said Michael Muzio and Wesley Earl Ball.

4. The conspiracy to commit extortion referred to in the conviction involved the contemplated use of actual or threatened force or violence against the person of another.

5. The crime of which the Respondent was convicted, conspiracy to collect an extension of credit by extortionate means, is a felony.

6. As a result of the subject conviction, Respondent was sentenced to imprisonment for a term of 51 months followed by supervised release for a term of 36 months and ordered to pay restitution of $100,000 to Michael Muzio.

7. The subject conviction has not been overturned or vacated on appeal.

8. Respondent was a co-owner in a business known as American Mobile Imaging (AMI) with Michael Muzio and others. AMI was in the business of providing medical testing or diagnostic services. The medical testing or diagnostic services provided by AMI included the use of a Magnetic Resonance Imaging (MRI) mobile unit.

9. Chiropractic is a healing art.

   
   

10. Dr. Butler's credible testimony was that, in his expert opinion, the practice of chiropractic has a foremost and formidable requirement for mental fitness and emotional stability on the part of practitioners. Moreover, Dr. Butler's credible

    testimony was that the crime of which Joseph Forlizzo was convicted shows a callous disregard for and lack of respect for human life and that respect for human life is the entire premise of health care providers.

11. The crime of which Respondent was convicted is directly related to the practice of chiropractic medicine.

    CONCLUSIONS OF LAW

    
    

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

13. Pursuant to Section 460.413(2), Florida Statutes, Petitioner, Department of Health, Board of Chiropractic Medicine, is empowered to revoke, suspend, or otherwise discipline the license of any chiropractor found guilty of the acts enumerated in Section 460.413(1), Florida Statutes.

14. In the Administrative Complaint, Petitioner alleged that Respondent violated Section 460.413(1)(c), Florida Statutes (1997), by being found guilty of a crime which relates to the practice of chiropractic.

15. Section 460.413(1)(c), Florida Statutes (1997), states in relevant part the following:

    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, regardless of adjudication, of a crime in any jurisdiction which directly relates to the

       practice of chiropractic or to the ability to practice chiropractic. Any plea of nolo contendre shall be considered a conviction for purposes of this chapter.

       
       

16. In an action to suspend or revoke a license, the burden is on Petitioner to prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Trust v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); and Section 460.413(6), Florida Statutes.

17. In this case, Petitioner has met its burden of proof.

    
    

18. The material facts of this case are undisputed by Respondent. Rather, Respondent argues that the crime of which he was convicted is not directly related to the practice of chiropractic. This position, however, is not supported by law.

19. It is well established that the misconduct of a practitioner does not have to arise out of an office setting or relate to his technical ability to practice. Ashe v. Department of Business and Professional Regulation, 467 So. 2d 814 (Fla. 5th DCA 1985). In Ashe, an accountant appealed the revocation of his accountant's certificate by the Board of Accounting after he was convicted of fraudulent acts involving gambling. In upholding the revocation, the court relied on the authority of Rush v. Department of Professional Regulation, Board of Podiatry, 448 So. 2d 26 (Fla. 1st DCA 1984).

20. Rush involved a podiatrist who was convicted of conspiracy to possess and import marijuana in violation of

    federal statutes. The First District Court of Appeal upheld suspension of his license by the Board of Podiatry. In Rush, 448 So. 2d 26, 27, the court stated:

    By confining the convictions upon which disciplinary action may be based to those directly related to the practice of podiatry, the Legislature 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] felony conviction for conspiracy to import a dangerous drug is within the scope of "those crimes which directly relate to the practice or ability to practice podiatry," upon which a disciplinary action may rightfully be based.

    
    

21. The facts of this case are similar to those in Greenwald v. Department of Professional Regulation, 501 So. 2d 740 (Fla. 3rd DCA 1987), rev. denied, 511 So. 2d 998, cert. denied, 484 U.S. 986 (1987). In Greenwald, the Board of Medicine revoked the license of a physician after he was convicted of solicitation to commit first-degree murder of his ex-wife. Although the crime for which he was convicted was not a consummated offense, it evidences a "warped judgment and disregard for human life - - the antithesis of that which is required and expected of physicians" and directly relates to the practice of medicine or the ability to practice medicine. Greenwald, 501 So. 2d 740, 741.

22. In this case, Respondent conspired to collect an extension of credit by extortionate means that contemplated the use of actual or threatened force against individuals, one of whom was his business partner. As in Greenwald, there is no evidence that acts of force or violence were ever used against these individuals. Nonetheless, the felony offense of which Respondent was convicted is one in which Respondent contemplated the use of force or violence against two people. As in Greenwald, this crime evidences a warped judgment and a disregard for human life.

23. The crime for which Respondent was convicted, conspiracy to collect an extension of credit by extortionate means from persons by express and implicit threats of or acts of violence and other criminal means to cause harm to the person, property and reputation of said persons, directly relates to the practice of chiropractic.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding that Respondent, Joseph Forlizzo, is guilty of conduct described in Section 460.413(1)(c), Florida Statutes, as alleged in the Administrative Complaint; and revoking Respondent's license to practice as a chiropractic physician.

DONE AND ENTERED this 15th day of February, 2000, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2000.

COPIES FURNISHED:

James A.G. Davey, Jr., Esquire

Agency for Health Care Administration 2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

Timothy E. Leahy, Esquire Leahy and Associates, P.A.

535 Central Avenue, Suite 300 St. Petersburg, Florida 33701

Eric G. Walker, Executive Director Department of Health

Board of Chiropractic 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast BIN A02

Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast BIN A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-004865

Orders for Case No: 98-004865