Judges: DIANE D. TREMOR
Agency: Department of Health
Latest Update: Oct. 22, 1976
Summary: Respondent was guilty of felony dispensing of controlled substances. Respondent should be put on probation to run concurrently with his federal criminal probation.
76-1123.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOARD OF OSTEOPATHIC )
MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1123
)
HAROLD FRANK KOCH, D.O., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 1:00 P.M., October 5, 1976, in Courtroom "B" of the Pinellas County Judicial Building, 545 First Avenue North, St. Petersburg, Florida.
APPEARANCES
For Petitioner: Ronald C. LaFace
Post Office Box 1752 Tallahassee, Florida 32304
For Respondent: William H. Fleece
Fleece, Phoades & Werly Post Office Box 40750
St. Petersburg, Florida 33743 FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times pertinent to these proceedings, respondent was licensed as an osteopathic physician in the States of Michigan and Florida. His Michigan license was suspended for a period of sixty days in November of 1974, apparently for the acts which were the subject of the federal conviction described below. Said Michigan license was reinstated and is currently in effect.
On February 26, 1976, respondent pled guilty and was convicted in the United States District Court, Western District, of Michigan, of knowingly, wilfully and unlawfully dispensing, or causing to be dispensed, approximately 30 units of Eskatrol, a Schedule II controlled substance, in violation of 21 U.S.C. 841 (a)(1). Eskatrol is an amphetamine. The Court suspended imposition of sentence and placed respondent on probation for a period of three years. As terms and conditions of his probation, respondent was ordered to pay a fine in the amount of $5,000.00, spend thirty nights in jail and work two nights a week at a county health clinic for migrant farm workers during the months from May through September. It was further provided that if respondent moved to Florida,
his probation officer could petition for a suspension of the 30 days incarceration.
With the permission of the federal court, respondent moved to Florida and the thirty-day jail sentence was removed as a condition of probation. The federal court changed the special condition of his probation so as to read:
"Dr. Koch is to provide a voluntary service to the community for approximately four hours a week over a period of fifteen months, at a service approved by the
U.S. Probation Office."
Respondent is currently providing medical assistance to the Venereal Disease Clinic of the Pinellas County Health Center every Tuesday, and will continue to do so to satisfy the terms of his probation, as amended.
Respondent's federal BND number has been withdrawn, and he can no longer write prescriptions for controlled substances.
On May 21, 1976, petitioner issued its Administrative Complaint against respondent seeking to revoke, annul, withdraw or suspend the respondent's license based upon the allegation that he was convicted of a felony and that the same is grounds for discipline under F.S. 459.14(2)(a).
Respondent requested an administrative hearing, and the undersigned Hearing Officer was assigned to conduct the hearing.
CONCLUSIONS OF LAW
Conviction of a felony is grounds for discipline of an osteopathic physician pursuant to F.S. 459.14(2)(a). That section further provides that
"the conviction of any offense in another state ... which, if committed in this state, would be deemed a felony shall be held to be a felony under this section without regard to
its designation in such other state ..."
Here, respondent was convicted of knowingly, wilfully and unlawfully dispensing, or causing to be dispensed, approximately thirty units of Eskatrol. Eskatrol is an amphetamine, a controlled substance under Schedule II of F.S. 893.03(2)(c). Under Florida law, a person violating Chapter 893 with respect to a controlled substance named or described in 893.03(2)(c) is guilty of a felony of the third degree. F.S. 893.13(1)(a)(2). Thus, respondent was convicted in another state of an offense which, if committed in Florida, would be deemed a felony. The Hearing Officer therefore concludes that respondent is guilty as charged in the Administrative Complaint, notwithstanding the fact that no illegal acts actually occurred within the boundaries of the State of Florida.
The penalties of suspension or revocation of a professional license should be sparingly and cautiously utilized and directed at those who have committed grievous breaches off duty, endangered patients or would be a threat to patients were they permitted to continue the practice of their profession.
In this case, it is the conclusion of the undersigned that the offense for which respondent was convicted represents a grievous breach of duty which could have
the effect of endangering patients. However, it is also recognized that respondent has been punished by the sixty day suspension of his license in Michigan and by the federal adjudication of guilt with attendant probationary terms, that he can no longer write prescriptions for controlled substances and that the offense for which he was convicted was not one resulting from lack of skill, training or ability. Upon a finding of guilt, the penalty to be imposed should serve both the disciplinary purposes of law as well as the public in general who are entitled to receive the benefits of respondent's training. With this in mind, it is felt that the penalty of revocation or suspension of respondent's license would be too harsh, and that a period of probation to run concurrently with the terms and length of his federal probation would be more appropriate.
RECOMMENDATION
Based upon the findings of fact and conclusions of law recited above, it is recommended that:
the Board of Osteopathic Medical Examiners find respondent guilty of conviction of a felony as charged in the Administrative Complaint; and
the Board place respondent on probationary status to run concurrent with the length, terms and conditions of his federal probation in Docket No. G75-1, as amended by the Order dated April 23, 1976.
Respectfully submitted and entered this 22nd day of October, 1976, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
COPIES FURNISHED:
Mr. Ronald C. LaFace Post Office Box 1752
Tallahassee., Florida 32304
Mr. William H. Fleece Fleece, Phoades & Werly Post Office Box 40750
St. Petersburg, Florida 33743
Mr. Dennis P. Whittenberg Executive Coordinator
Board of Osteopathic Examiners
315 S. Calhoun Street Suite 820
Tallahassee, Florida 32304
Docket for Case No: 76-001123
Orders for Case No: 76-001123
| Issue Date |
Document |
Summary |
|
Oct. 22, 1976 |
Recommended Order
|
Respondent was guilty of felony dispensing of controlled substances. Respondent should be put on probation to run concurrently with his federal criminal probation.
|
