STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF OSTEOPATHIC ) MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1059

)

DAVID I. COLLIER, D. O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in the above matter on November 15, 1979, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Ronald C. LaFace

Tallahassee, Florida

For Respondent: Joseph C. Jacobs

Tallahassee, Florida

On or about May 24, 1977, the Florida State Board of Osteopathic Medical Examiners ("Board" hereafter) filed an Administrative Complaint against David I. Collier ("Respondent" hereafter). The Respondent was charged with being convicted of a felony in Pennsylvania, and the Board was seeking to revoke, suspend, or otherwise discipline the Respondent's right to practice as an osteopathic physician in Florida. The Respondent requested an administrative hearing, and on June 15, 1977, the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on August 23 and 24, 1977. The parties jointly moved for a continuance of the final hearing on the grounds that the Respondent was pursuing an appeal of his Pennsylvania conviction. After appeals were exhausted, the parties pursued settlement negotiations which were ultimately unsuccessful, and the final hearing was rescheduled as set out above.

At the final hearing the parties entered into several factual stipulations. Joint Exhibits 1 and 2 were received into evidence without objection. The Board did not call any witnesses. The Respondent testified as a witness on his own behalf, and Respondent's Exhibits 1-4 were received into evidence. The parties have submitted post-hearing legal memoranda.

FINDINGS OF FACT

1. The Respondent is licensed by the Board to practice as an osteopathic physician in Florida.

2. The Respondent has been licensed to practice as an osteopathic physician in the State of Pennsylvania. He was criminally charged in the State of Pennsylvania with various violations of 35 Penna. Stat. Section 780- 113(a)(14). After entering a plea of not guilty, he was tried and convicted of three counts of violating the statute. He was adjudicated guilty and sentenced. The Respondent has exhausted all direct appellate remedies in Pennsylvania. He continues to pursue available collateral remedies.

   
   

3. The Pennsylvania State Board of Osteopathic Examiners initiated disciplinary action against the Respondent. A hearing was conducted, and the Pennsylvania board concluded that the Respondent was convicted of a crime involving moral turpitude and was guilty of unethical conduct. The Board stated:

   
   

   It is clear that the Respondent blatantly disregarded the health and welfare of the citizens of Pennsylvania and the Board can impose a penalty for such disregard. How- ever, the Board has taken into consideration the fact that the Respondent no longer resides or practices osteopathic medicine

   in Pennsylvania, and therefore, he is presently not a danger to the health, safety and welfare of Pennsylvania.

   
   

   Apparently disregarding the testimony of the Respondent in the record that he did intend to continue practicing osteopathic medicine in Pennsylvania if his license was not revoked, the Board imposed no penalty against the Respondent. The Respondent thus continues to be licensed to practice osteopathic medicine in Pennsylvania.

   
   

4. The Respondent is presently engaged in the general practice of osteopathic medicine in Florida. He practices in a black area and is the only doctor who accepts Medicaid patients in the area. During 1976 he turned in his federal license to dispense controlled substances. He is thus not able to prescribe controlled substances in his practice, but he can prescribe other drugs. The Respondent has not been the subject of any other disciplinary proceedings during his many years as a practicing osteopathic physician.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Sections 120.57(1), 120.60, Florida Statutes.

   
   

6. Chapter 459, Florida Statutes, governs the practice of osteopathic medicine in Florida. The statute provides for licensure of osteopathic physicians, and includes substantive and procedural provisions relating to revocation, suspension, or other disciplinary action against licensed osteopathic physicians. The Florida legislature, during its 1979 regular session, revised the entire chapter. 1979 Laws of Florida Ch. 79-230. The Act became effective July 1, 1979. The parties to this proceeding, and the Hearing Officer, have assumed that since the disciplinary action against the Respondent was initiated prior to the revision, the prior law would be applied. Section 459.14, Florida Statutes (1977) provides in pertinent part:

   (1)(a) Upon the finding of any one or more of the causes enumerated in sub- section (2) , the State Board of Osteo- pathic Medical Examiners may:

   1. Deny the application for license of any applicant.

   2. Permanently withhold issuance of a license.

   3. Suspend the license or restrict the practice of osteopathic medicine of any person licensed pursuant to the

      provisions of this chapter for a period of up to 5 years.

      1. Revoke the license of any person licensed pursuant to the provisions of this chapter.

      2. Require any person licensed pur- suant to the provisions of this chapter to submit to medical or other appropriate care, counseling or treatment.

      (b) In conjunction with subparagraphs

      3 and 4 of paragraph (a) , the board may make a finding of guilt and suspend imposi- tion of judgment and penalty, or it may impose such judgment and penalty and suspend the operation thereof and place

      the physician on probation, which order of probation may be vacated upon noncom- pliance.

      1. The following are grounds for the various actions listed in subsection (1)

         1. Conviction of a felony, as shown by a certified copy of the record of the court of conviction. The conviction of any offense in another state, territory, or country 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, territory or country.

      
      

      The Board contends that the Respondent's Pennsylvania conviction constitutes conviction of a felony, or alternatively constitutes conviction of an offense in another state which if committed in Florida would be deemed a felony. The Respondent contends that violation of the Pennsylvania statute would not constitute a felony in Florida, and that the conviction therefore cannot serve as grounds for disciplinary action under Section 459.14(2)(a).

      
      

7. Conviction of a violation of 35 Penna. Stat. 780-113(a)(14) constitutes a felony under the laws of Pennsylvania. 35 Penna. Stat. 780- 113(c)(2)(f)(1). The Respondent has thus been convicted of three counts of a felony, and is subject to disciplinary action by the Board in accordance with the first sentence of 459.14(2)(a).

   
   

8. The Respondent urges that the second sentence of the paragraph limits consideration of convictions from other jurisdictions to those that would constitute a felony under the laws of Florida. This construction of the

   paragraph is rejected. Rather it appears that the second sentence was intended to permit consideration of convictions from other jurisdictions that do not constitute felonies under the laws of that jurisdiction, but would constitute felonies under the laws of the State of Florida. Even if the Respondent's construction of the statute were accepted, however, the Respondent would be subject to disciplinary action, because a violation of 35 Penna. Stat. 780- 113(a)(14) would constitute a felony under the laws of Florida. The Pennsylvania statute provides:

   
   

   (a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

   * * *

   (14) The administration, dispensing, delivery, gift or prescription of any con- trolled substance by any practitioner or

   professional assistant under the practitioner's direction and supervision unless done (i) in good faith in the course of his professional practice; (ii) within the scope of the patient relationship; (iii) in accordance with treat- ment principles accepted by a responsible segment of the medical profession.

   
   

   The Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893, Florida Statutes, contains similar provisions. The Act prohibits administration of controlled substances, but excepts from the prohibition licensed physicians as follows: (893.05)

   
   

   (1) A practitioner, in good faith and in

   the course of his professional practice only, may prescribe, administer, dispense, mix,

   or otherwise prepare a controlled substance, or he may cause the same to be administered by a licensed nurse or an intern practitioner under his direction and supervision only...

   
   

   Both the Pennsylvania and Florida statutes permit administration of controlled substances by licensed physicians in good faith in the course of his professional practice. The Pennsylvania statute adds: "... (ii) within the scope of patient relationship; (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession." The Respondent contends that these additions are vague and ambiguous, would not be valid under Florida law, and even if valid, substantially alter the nature of the Pennsylvania statute so that it is not equivalent to the Florida statute. It has not been shown that the additions render the Pennsylvania statute so vague as to be unenforceable. In any event, the additional requirements impose upon prosecution authorities in Pennsylvania additional burdens of proof which would not be necessary under Florida law. The Pennsylvania statute is substantively identical to the Florida statute, with these additional proof requirements, and it is therefore concluded that a violation of the Pennsylvania statute would constitute a felony under the laws of the State of Florida.

   
   

9. The Respondent is guilty of a violation of 459.14 (2)(a), Florida Statutes. In determining the appropriate disciplinary action, the following mitigating factors should be considered: The Respondent has not been the subject of any other disciplinary proceedings during a long practice as an

osteopathic physician; the Respondent has voluntarily relinquished his federal license to dispense controlled substances; the Respondent is providing important medical treatment to a frequently overlooked segment of the population; and the Respondent remains licensed to practice osteopathic medicine in the State of Pennsylvania, where he was convicted. In view of the very serious violations by the Respondent, and of these mitigating circumstances, it is concluded that it would be appropriate to suspend the Respondent's license to practice osteopathic medicine for a period of six months.

RECOMMENDED ORDER

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

RECOMMENDED:

That the Florida State Board of Osteopathic Medical Examiners enter a final order adjudicating the Respondent, David I. Collier, guilty of a violation of 459.14(2)(a), Florida Statutes (1977), and suspending his license to practice as an osteopathic physician for a period of six months.

RECOMMENDED this 26th day of December, 1979, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32399

(904) 488-9675

COPIES FURNISHED:

Ronald C. LaFace, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302

Joseph C. Jacobs, Esquire

ERVIN, VARN, JACOBS, ODOM & KITCHEN

Post Office Box 1170 Tallahassee, Florida 32302

Docket for Case No: 77-001059

Orders for Case No: 77-001059