STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-0671

)

ERIC M. PATZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on March 22, 23, and 24, 2000, in Miami, Florida, before Administrative Law Judge Michael M. Parrish, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carol A. Lanfri, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Monica Felder, Esquire

Sean M. Ellsworth, Esquire Dresnick, Ellsworth & Felder, P. A. SunTrust Plaza, Suite 701

201 Alhambra Circle

Coral Gables, Florida 33134 STATEMENT OF THE ISSUES

This is a proceeding in which the Petitioner seeks to suspend the license of a medical doctor on the basis of allegations set forth in an Administrative Complaint. The Administrative Complaint charges that the medical doctor is in

violation of Section 458.331(1)(s), Florida Statutes, "by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition."

PRELIMINARY STATEMENT

On December 17, 1999, the Petitioner filed an Emergency Suspension Order against the license of the Respondent, Eric M. Patz, M.D. The Emergency Suspension Order alleged that the Respondent was not able to practice medicine with reasonable skill and safety for one or more of the reasons set forth in Section 458.331(1)(s), Florida Statutes. On January 3, 2000, an Administrative Complaint was filed against the Respondent. The Administrative Complaint alleged essentially the same facts as those alleged in the Emergency Suspension Order.

Following service of the Administrative Complaint, the Respondent timely requested an evidentiary hearing, and on February 8, 2000, the proceeding was duly transferred to the Division of Administrative Hearings for assignment of an administrative law judge. Following a telephone conference with counsel for the parties, the proceeding was scheduled for hearing on March 22-24, 2000.

At the commencement of the final hearing, two motions by the Petitioner requesting official recognition of several matters were granted. During the course of the final hearing, the

Petitioner presented the testimony of twelve witnesses. The Petitioner also had fifteen exhibits marked for identification. Thirteen of those exhibits were received in evidence.1 The Respondent testified on his own behalf, and also presented the testimony of three additional witnesses. The Respondent offered six exhibits, all of which were received in evidence.

The Transcript of the hearing was filed with the Division of Administrative Hearings on May 26, 2000.2 By agreement of all parties, the deadline for filing proposed recommended orders was extended to June 9, 2000. All parties timely filed their respective proposed recommended orders containing proposed findings of fact and conclusions of law. The proposals submitted by the parties have been carefully considered during the preparation of this Recommended Order.

On June 15, 2000, the Petitioner filed a Motion to Strike Portions of Respondent's Proposed Recommended Order. A response in opposition to the motion promptly followed. Upon consideration, the motion filed on June 15, 2000, is denied.

FINDINGS OF FACT

1. The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME0077594.

2. Cocaine is a Schedule II controlled substance with a high potential for abuse, whose use may lead to severe psychological or physical dependence. When a person ingests

   cocaine, the human body metabolizes some of the cocaine into a substance called benoylecgonine. Benoylecgonine is commonly referred to as cocaine metabolite or metabolite of cocaine. In the normal course of events, cocaine metabolite is found in the human body only following the ingestion of cocaine.

3. On February 17, 1998, the Respondent submitted a urine sample for drug screening as part of the application process for employment at Jackson Memorial Hospital in Miami, Florida. The results of that test came back positive for metabolite of cocaine. While positive, the amount of cocaine metabolite recorded by the test equipment was very small, only 61 nanograms of metabolite of cocaine per milliliter.

4. The Respondent was very surprised by the results of the urine drug screen test, and he questioned the accuracy of the test results. When he gave the urine sample on February 17, 1998, the sample was split into two separate samples. He eventually requested a test of the second sample. The second sample was tested on November 24, 1998. The second sample also tested positive, but again the measured amount of cocaine metabolite was very small, only 50.5 nanograms per milliliter.

5. The Respondent is unable to explain why the urine specimen he gave on February 17, 1998 would test positive for metabolites of cocaine. The Respondent denies any voluntary or intentional ingestion of cocaine and is unaware of any manner in which he might have accidentally or unknowingly ingested cocaine.

   The Respondent believes that the test results of the urine sample he gave on February 17, 1998, are erroneous because there is no logical reason known to him for his urine to have tested positive for metabolites of cocaine, other than test error or sample contamination.

6. Drug test results that indicate only very small amounts of cocaine metabolite in the test sample are regarded as insignificant and are treated essentially the same as negative results. For example, Jackson Memorial Hospital treats test results of less than 50 nanograms of cocaine metabolite per milliliter the same as a negative result. And the Department of Transportation treats test results of less than 150 nanograms of cocaine metabolite per milliliter the same as a negative result.

7. When the Respondent's urine sample of February 17, 1998, was tested the first time, the materials being tested also included two control samples of known values. One of the control samples contained 150 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 163 nanograms per milliliter; 13 nanograms high. The other control sample contained 450 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 482 nanograms per milliliter; 32 nanograms high. On the first test of the Respondent's February 17, 1998, urine sample, the test equipment recorded a measurement of 61 nanograms of cocaine metabolite per milliliter. That result was not adjusted to take

   into account the fact that the test equipment was producing high readings on the known samples. If the test results of the Respondent's urine sample were to be adjusted by the 13 nanogram error in the smallest of the control samples, the result would be

   48 nanograms of cocaine metabolite in the Respondent's sample.

   
   

8. The Respondent became licensed to practice medicine in Florida on or about March 4, 1999. Shortly thereafter, the Respondent obtained employment with an anesthesia group in Miami, Florida, known as Anesthesia Group of Miami, Inc. Anesthesia Group of Miami, Inc., had a contract to provide anesthesia services to patients at Coral Gables Hospital. In his capacity as an employee of Anesthesia Group of Miami, Inc., the Respondent was assigned to provide anesthesia services to patients at Coral Gables Hospital on a regular basis.

9. Dr. Manuel Torres was the CEO and owner of the Anesthesia Group of Miami, Inc. Dr. Torres was the person who made the decision to offer the Respondent employment with the Anesthesia Group of Miami, Inc., and was also the person primarily responsible for supervising the Respondent's professional activities.

10. Dr. Manuel Torres has been practicing anesthesiology for approximately 30 years. During that time he has served as Chief of Anesthesiology at several hospitals in the Miami area, including Hialeah Hospital, Golden Glades Hospital, and Coral

    Gables Hospital. Dr. Manual Torres has also been a professor of medicine at the University of Miami School of Medicine.

11. While the Respondent worked at Coral Gables Hospital as a new anesthesiologist, he was closely supervised by Dr. Torres, both inside and outside of the operating room. During the course of his supervision of the Respondent, it never appeared to

    Dr. Torres that the Respondent was impaired in any way.

    
    

12. On the evening of July 16, 1999, while some atypical events were taking place in the vicinity of the lobby of the Coral Gables Hospital, the Respondent was elsewhere in the hospital providing anesthesia services for two patients.3 Hospital records show that from 7:00 p.m. until about 9:20 p.m. on July 16, 1999, the Respondent was providing anesthesia services to two patients in one of the hospital operating rooms. These medical records include entries made by the Respondent as the anesthesia services were being provided to the patients in the operating room and in the recovery room, with the Respondent documenting the patient's pulse, blood pressure, respiration, and other information in the records every few minutes. Between about 9:20 p.m. and 11:07 p.m., one of the patients being attended to by the Respondent was in the recovery room. During this time, the Respondent remained in or near the recovery room to ensure that the patient fully recovered from the anesthesia before the Respondent left the hospital premises. At 11:07 p.m., the recovery room nurse went to the Respondent to ask him for

    orders to move the patient from the recovery room to a regular floor. The Respondent gave the requested orders. Very shortly thereafter, the Respondent left the recovery room and also left the hospital. The Respondent was picked up at the hospital by his roommate at approximately 11:30 p.m. On the evening of July 16, 1999, the Respondent was not the person in the men's restroom of the hospital lobby and was not the person who, upon leaving the men's restroom, asked that a taxi be called.4

13. As of the date of the final hearing in this case, the Respondent had shared a dwelling place with an adult roommate for approximately one and a half years. During that period of time, the Respondent's roommate has never seen the Respondent using drugs, nor has he ever seen the Respondent engage in any conduct that created any suspicion of drug use.

14. After July 16, 1999, and until his license was suspended in December of 1999, the Respondent continued to work for the Anesthesia Group of Miami under the supervision of Dr. Manuel Torres at facilities other than Coral Gables Hospital. Dr. Torres was never notified by anyone at Coral Gables Hospital about the allegations made against the Respondent on July 16,

    1999, even though the hospital knew that the Respondent continued to be employed by Dr. Torres and that the Respondent was continuing to provide anesthesiology services to patients at other facilities.

15. Shortly before the Respondent was employed by Dr. Torres, Martha Garcia, the Chief Executive Officer, at Coral Gables Hospital, had notified Dr. Torres that the hospital had decided to terminate its contract with the Anesthesia Group of Miami, and that after midnight on July 16, 1999, another anesthesia group would be providing all anesthesia services at Coral Gables Hospital. The new anesthesia group took over responsibility for all anesthesia services at Coral Gables Hospital beginning at the stroke of midnight on July 16, 1999. The Respondent had wanted to continue to work at Coral Gables Hospital after July 16, 1999. Dr. Torres did not object to the Respondent continuing to work at Coral Gables Hospital after July 16, 1999. Accordingly, Dr. Torres advised the Respondent that the he would release the Respondent from the non-compete clause in the Respondent's employment contract. Dr. Torres also advised the hospital CEO that he was releasing the Respondent from the non-compete clause. The Respondent communicated with the new anesthesia group and made arrangements to work with that group when they began providing anesthesia services at Coral Gables Hospital on July 17, 1999. The Respondent also discussed the matter with Martha Garcia. She initially told the Respondent that she had no objection to him continuing to work at Coral Gables Hospital with the new anesthesia group after July 16, 1999. At some point in time prior to July 16, 1999, Martha Garcia changed her mind. She told the new anesthesia group that

    she would not allow the Respondent to work at Coral Gables Hospital after July 16, 1999. She also told the Respondent that she had changed her mind. Martha Garcia and the Respondent had at least one heated conversation about her change of mind.

    Martha Garcia became very angry with the Respondent about the way he spoke to her during their heated conversation. She was still angry with him on July 16, 1999. Martha Garcia's animosity towards the Respondent was still evident during her testimony at the final hearing.

16. On August 3, 1999, about two and a half weeks after the alleged incident on the night of July 16, 1999, Martha Garcia, the Chief Executive Officer of Coral Gables Hospital, called the Physicians Recovery Network (PRN) and told them that a hospital security guard had discovered the Respondent "strapped off" and injecting a substance into himself.5

17. The PRN monitors health care practitioners who are impaired or potentially impaired by alcohol, drugs, or other mental conditions. Dr. Raymond Pomm, the Medical Director of the PRN, serves as the impaired practitioner's consultant to the Board of Medicine.

18. In response to the information provided by Martha Garcia, the PRN contacted the Respondent on August 10, 1999. The PRN requested that the Respondent obtain an evaluation for possible impairment and provided the Respondent with several

    options for such an evaluation. The Respondent agreed to see Dr. Richard Seely for the evaluation.

19. On August 20, 1999, the Respondent presented to Richard Seely, M.D., who is a board certified addiction psychiatrist, for evaluation. At that time, Dr. Seely observed Respondent to be anxious, tremulous, and in an agitated state. Additionally, Dr. Seely noticed that the Respondent's nose was running and that the Respondent frequently rubbed his nose.

20. During Respondent's visit with Dr. Seely, Dr. Seely requested that the Respondent provide an immediate urine sample for a urine drug screen. Such a urine drug screen is a routine part of an evaluation of impairment or possible impairment. The Respondent refused to provide an immediate urine sample. The Respondent was presented with two options for submitting to an immediate urine drug screen. The Respondent could either call his attorney from Dr. Seely's office, or he could immediately provide the urine sample, which Dr. Seely agreed to hold until such time as the Respondent could speak with his attorney. The Respondent rejected these options, and he did not provide a urine sample on August 20, 1999. The Respondent also refused to sign the consent forms and refused to pay for the evaluation.

21. The Respondent contacted his attorney to discuss whether he should sign the forms provided to him by Dr. Seely and whether he should provide the urine sample requested by Dr. Seely. Following review of the forms, the attorney advised the

    Respondent that he should sign the forms and that he should provide the requested urine sample.

22. On August 24, 1999, the Respondent returned to Dr. Seely's office, signed the consent forms, and provided a urine sample. Testing of that urine sample was negative for any of the drugs tested for. However, because the Respondent had waited four days to provide the urine sample, on August 24, 2000, Dr. Seely also asked the Respondent to provide a hair sample. The Respondent contacted his attorney to ask whether he should comply with the request for a hair sample. The Respondent's attorney advised him not to provide a hair sample for testing. Consistent with that advice, the Respondent refused to provide a hair sample on August 24, 2000. Dr. Seely could not complete an evaluation of Respondent or make a recommendation to PRN without the Respondent's undergoing some form of reliable drug screening, either by immediate urine screening or by hair drug toxicology screening. Dr. Seely reported to the PRN that an evaluation of the Respondent could not be completed because the Respondent refused to cooperate with the evaluation.

23. On October 4, 1999, Dr. Raymond Pomm, the Medical Director at PRN and a board certified addiction psychiatrist, wrote to the Respondent. Dr. Pomm's letter to the Respondent included the following:

    This correspondence serves as written documentation that your case is being referred to the Agency for Health Care Administration for appropriate action. This

    referral is the result of serious allegations brought forth and your unwillingness to fully cooperate with the evaluation process to resolve same.

    
    

24. On October 4, 1999, Dr. Raymond Pomm also wrote to the Agency for Health Care Administration (AHCA). Dr. Pomm's letter to the AHCA summarized the information he had received regarding the allegations against the Respondent, summarized efforts to have the Respondent submit to an evaluation, summarized the Respondent's failures to cooperate, and concluded with the opinion that the Respondent was "unsafe to practice his profession with reasonable skill and safety."

25. As of March 24, 2000 (the last day of the final hearing in this case), the Respondent had not completed a psychological evaluation or a chemical dependency evaluation. However, during March of 2000, the Respondent voluntarily submitted several urine samples for drug screen testing. These more recent urine samples were tested by the same lab that performed the drug screen test on February 17, 1998. The more recent samples were submitted on each of the following dates: March 7, 10, 13, 17, and 20, 2000. All five of the urine samples submitted by the Respondent during March of 2000 were negative for cocaine metabolite. They were also negative for all of the other drugs for which the tests screened.

26. Under Section 458.331(1)(s), Florida Statutes, the Petitioner has "the authority to issue an order to compel a licensee to submit to a mental or physical examination by

    physicians designated by the department." No such order was issued to compel the Respondent to submit to such a examination.

    CONCLUSIONS OF LAW

    
    

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

28. In a proceeding of this nature, proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So. 2d 922 (Fla. 3d DCA 1988); Section 120.57(1)(h), Florida Statutes. ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").6

29. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses 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, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

30. The disciplinary action taken against the licensee may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

31. The sole charge against the Respondent in the Administrative Complaint is that, by reason of specified actions alleged in the Administrative Complaint, the Respondent has violated Section 458.331(1)(s), Florida Statutes, "by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition." The cited statutory

    provision authorizes the Board of Medicine to take disciplinary action against a physician on the following grounds:

    (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the secretary or the secretary's designee that probable cause exists to believe that the licensee is unable to practice medicine because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department's order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business.

32. In the final analysis, this is simply a case in which the evidence is insufficient to prove by clear and convincing evidence that the Respondent is, or ever was, unable to practice medicine with reasonable skill and safety to patients by reason of any of the criteria itemized in Section 458.331(1)(s), Florida Statutes. In this regard it is first noticed that there is no evidence at all that the Respondent ever performed professional services while impaired. To the contrary, Dr. Torres, who closely supervised the Respondent for approximately ten weeks prior to July 16, 1999, and who continued to employ the Respondent for several months thereafter, never observed any indication of impairment.

33. Further, there is no credible evidence that the Respondent was ever impaired under any other circumstances. For reasons mentioned elsewhere in this Recommended Order, the testimony about the events that allegedly occurred in the men's restroom in the hospital lobby and in the vicinity of the hospital switchboard operator falls far short of the clear and convincing evidence standard. Moreover, the greater weight of the evidence is to the effect that at the time of the atypical events in the hospital lobby, the Respondent was elsewhere in the hospital performing his professional duties.

34. The evidence does clearly establish that the Respondent, on the advice of counsel, refused to comply with several requests of Dr. Seely, and ultimately failed to undergo a voluntary evaluation by Dr. Seely to determine whether the Respondent was impaired by reason of any of the criteria itemized in Section 458.331(1)(s), Florida Statutes. But the Respondent's failures to cooperate with Dr. Seely is not clear and convincing evidence that the Respondent was impaired at that time or at any other time. At most, it raises doubts or suspicions as to the reasons for the Respondent's lack of cooperation. Such doubts and suspicions, coupled with other information provided to the Petitioner, might well have been sufficient to establish probable cause for the issuance of an order compelling the Respondent to submit to a mental or physical examination, but they are not a

    substitute for the clear and convincing evidence required in proceedings of this nature.7

35. The evidence also clearly establishes that a urine sample submitted by the Respondent on February 17, 1998, tested positive for cocaine metabolite, both when originally tested, and when retested several months later. However, for several reasons, the test results of the February 17, 1998, urine sample fall short of being clear and convincing evidence that the Respondent had ingested cocaine; much less that he had ingested cocaine in such amounts or with such frequency as to be impaired either then or now. One of the major problems with the drug test evidence is the fact that the testing equipment is considered to be "accurate" or "functioning properly" when the test results are within twenty percent above or below the known values of control samples. Such twenty-percent tolerances may be less problematic when the test results involve high readings, but they are quite problematic, and they raise significant doubts about test result reliability and about test result significance, when the quantitative results of the test are right on the borderline of what Jackson Memorial Hospital thinks is significant, and are approximately one-third the value of what the Department of Transportation thinks is significant. When the minute amount of cocaine metabolite measured by the tests of the February 17, 1998, urine sample is considered in light of the "acceptable" twenty percent inaccuracies of the test equipment, in light of

    the failure to adjust raw test results to correct for the known error in the test equipment, in light of the cut-off standards used by the Department of Transportation, and in light of the Respondent's unqualified denial of any ingestion of cocaine, the test results fall short of being clear and convincing evidence that the Respondent ever ingested cocaine. And those test results fall even further from being clear and convincing evidence that the Respondent is now, or ever was, impaired as a result of ingesting cocaine.

36. In sum: The evidence in this case is insufficient to establish that the Respondent is now, or has ever been unable to practice medicine with reasonable skill and safety to patients by reason of any of the criteria itemized in Section 458.331(1)(s), Florida Statutes.

RECOMMENDATION

On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case concluding that the evidence is insufficient to establish that the Respondent is unable to practice with skill and safety, dismissing the Administrative Complaint in its entirety, and vacating the previously issued Emergency Suspension Order.

DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 6th day of July, 2000.

ENDNOTES

1/ Petitioner Exhibits 1 through 7A and 9 through 14 were received in evidence. Petitioner Exhibits 7B and 8 were not received in evidence.

2/ This unusual delay in the preparation and filing of the transcript of the final hearing was reportedly due to a serious illness of the court reporter.

3/ Several witnesses called by the Petitioner testified that on the evening of July 16, 1999, at the same time that the Respondent was attending to the two patients described in paragraph 12 of the Findings of Fact, someone dressed in surgical blues was observed spending an unusual amount of time in the men's restroom in the hospital lobby. The person in the restroom spoke in a vulgar manner to the maid who attempted to clean the restroom, and was later observed to be sitting in a toilet stall, dropping a needle and syringe to the floor, retrieving the needle and syringe, and cleaning up drops of blood on the floor. That same person was later seen to exit the men's restroom, ask the switchboard operator to call a cab for him, and then walk unsteadily towards the ER to meet the cab. At least one of the witnesses was sure that the person in the restroom was the Respondent. That witness and any similarly minded witness appears to have been incorrect, because the greater weight of the evidence is to the effect that at the time of the events in the lobby men's room, the Respondent was in another part of the hospital providing anesthesia services to patients.

4/ The testimony regarding the unusual events on the evening of July 16, 1999, in the men's room of the hospital lobby includes details which, if credible, would suggest that the man who remained so long in the toilet stall, and who then requested that a cab be called, was the Respondent. But that information is not credible. To the contrary, that testimony appears to be very unreliable due to a number of reasons, not the least of which is that the CEO of Coral Gables Hospital appears to have encouraged some or all of the witnesses to these events to embellish their recollection of what they saw and heard on the night of July 16, 1998.

5/ Part of the information Martha Garcia provided to the PRN was false. None of the witnesses to the atypical events in the vicinity of the hospital lobby on the night of July 16, 1999, claimed to have seen anyone who was "strapped off" and in the process of injecting a substance into himself.

6/ Section 458.331(3), Florida Statutes, provides, among other things: "The division shall establish grounds for revocation or suspension of license by clear and convincing evidence." There is no exception to this statutory requirement for proceedings involving only charges under Section 458.331(1)(s), Florida Statutes.

7/ In the event of any future cases presenting circumstances similar to the ones presented here, it is recommended that serious consideration be given to the issuance of an order compelling the mental or physical examination authorized by Section 458.331(1)(s), Florida Statutes. In most cases, such examinations may be expected to achieve quicker and more satisfactory disposition of questions concerning possible impairment than can be achieved through the formal hearing process.

COPIES FURNISHED:

Carol A. Lanfri, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Monica Felder, Esquire Sean M. Ellsworth, Esquire

Dresnick, Ellsworth & Felder, P. A. SunTrust Plaza, Suite 701

201 Alhambra Circle

Coral Gables, Florida 33134

Tanya Williams, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

4052 Bald Cypress Way, 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: 00-000671

Orders for Case No: 00-000671