STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF OSTEOPATHIC )

MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 79-892

)

MAURICE L. KAYE, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at St. Petersburg, Florida, on July 23, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

Post Office Drawer 1838 Tallahassee, Florida 32302

For Respondent: Maurice L. Kaye, D.O.

Post Office Box 14202

St. Petersburg, Florida 33733 ISSUE PRESENTED

Whether Respondent's license to practice osteopathic medicine should be revoked or suspended for alleged violations of Chapter 459, Florida Statutes, and Chapter 21R, Florida Administrative Code, as set forth in Administrative Complaint, dated March 28, 1979.

Respondent appeared at the hearing without legal counsel and, after being advised of his rights as a respondent in administrative proceedings, elected to retirement himself in this case.

Petitioner's Administrative Complaint alleges in Count I that Respondent was convicted of violations of state drug laws in Pennsylvania in 1972 and was thereafter incarcerated for a period of five years in a penitentiary ending in 1977. Count II alleges that in 1973, Respondent's license to practice osteopathic medicine in the State of Pennsylvania was revoked by the Pennsylvania State Board of Osteopathic Medical Examiners. Count III alleges that in 1978, Respondent placed, or caused to be placed, an advertisement in a newspaper, in violation of Rule 21R-3.05, Florida Administrative Code. At the commencement of the hearing, Petitioner withdrew and voluntarily dismissed Count

1. The parties stipulated as to the felony criminal convictions and license revocation set forth in Counts I and II.

   The Hearing Officer granted a motion to quash a subpoena ad testificandum directed by Respondent to the Times Publishing Company and certain unspecified employees.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent has been licensed as an osteopathic physician in Florida since 1952 and currently holds License Number 959 issued by Petitioner (stipulation, testimony of Respondent).

      
      

   2. On June 15, 1972 Respondent was convicted of three counts of violation of the Drug, Device and Cosmetic Act of 1961, Section 4, Laws of Pennsylvania. As a result of these convictions, Respondent was incarcerated for a two-year period from 1972 to 1974. He was released on bond and again incarcerated from the Spring of 1977 until September, 1977 (stipulation, testimony of Respondent).

      
      

   3. Subsequent to his release from confinement on parole, Respondent taught several night school courses at Duquesne University, Pittsburgh, Pennsylvania and also was employed by VISTA for approximately one year. In November, 1978, he commenced an osteopathic practice in St. Petersburg, Florida (testimony of Respondent, Respondent's Exhibit 2).

      
      

   4. On November 8, 1973, the Pennsylvania State Board of Osteopathic Examiners revoked Respondent's license to practice osteopathic medicine and surgery in Pennsylvania based on his criminal convictions (stipulation, petitioner's Exhibit 1).

      
      

   5. In February, 1979, parole supervision of Respondent was transferred from the State of Pennsylvania to the State of Florida. The parole and probation office in St. Petersburg files periodic reports to parole authorities in Pennsylvania. During the period of Florida parole supervision, Respondent has been cooperative with his parole and probation officer and has not been difficult to supervise. The maximum expiration date of Respondent's parole status is September 5, 1983. Release from such status will be determined by the State of Pennsylvania. In April, 1979, Respondent received a hearing before the Pennsylvania Board of Pardons based upon his application for commutation of sentence, but has not received a decision on the application at this time (testimony of Ferriter, Respondent, Respondent's Exhibit 3).

      
      

   6. Respondent entered into a brief "physician assistance agreement" with the St. Petersburg Osteopathic Hospital after his arrival in Florida which provided for mutual under-takings designed to assist Respondent in establishing a practice. This arrangement however, lasted only approximately three and one half months. A number of Respondent's current patients or their relatives testified as to his competence and satisfaction in his methods of treatment. Additionally, Respondent submitted various documents concerning lectures he has made on medical hypnosis to various organizations, and letters from Pennsylvania residents and physicians expressing belief that he is rehabilitated and has contributed by social work in the community. A St. Petersburg pharmacist who is located near Respondent's present office and handles his prescriptions, testified that, to his knowledge, Respondent had not prescribed controlled substances with the possible exception of Valium (testimony of Brown, Lewis, Drake, Bishop, Beville, Hodges, Penvel, Respondent's Exhibits 1-3).

      
      

   7. In June, 1979, Respondent voluntarily took a polygraph examination from a private examiner in St. Petersburg. Although Respondent was under some tension at the time, he was capable of being tested. The results of the

      examination indicated deception on the part of Respondent in denying his guilt of the offenses for which he had been convicted in Pennsylvania. The results of the polygraph examination were received in evidence at the hearing by stipulation of the parties (testimony of Liens).

      
      

   8. Respondent testified as a witness at the hearing. He stated that his practice currently consists of natural and preventive medicine, including ortho molecular therapy. He further testified that he does not prescribe controlled substances since his patients do not need the same due to his natural healing methods. He seeks to maintain his license as a practitioner under a supervised probationary period. His practice is small at the present time and he has only one or two patients a day (testimony of Respondent).

      
      

      CONCLUSIONS OF LAW

      
      

   9. Petitioner seeks to take disciplinary action against the Respondent's license for conviction of a felony and revocation of his osteopathic medical license in another state. The grounds for such disciplinary action are set forth in subsections 459.14(2)(a) and (1), Florida Statutes. Respondent does not contest the fact of his 1972 Pennsylvania conviction or the 1973 license revocation by the Pennsylvania State Board of Osteopathic Medical Examiners. The parties having stipulated to the existence of the foregoing grounds for disciplinary action, it is only necessary to determine appropriate action to be taken by Petitioner in the matter.

      
      

   10. The commission of criminal offenses by physicians involving drugs raises serious questions as to the licensee's fitness to continue the practice of osteopathic medicine. A determination in this regard must necessarily take into consideration the licensee's conduct subsequent to the conviction, including evidence of rehabilitation.

       
       

   11. No question has been raised in this proceeding by Petitioner as to Respondent's competence to practice osteopathic medicine. In fact, he has been practicing without incident since his return to Florida in 1978. The Respondent's actions since his release from confinement have shown that he has attempted to make amends for his prior misconduct by participation in social action programs that are beneficial to the community. He has submitted evidence attesting to his ability as a physician and as to his adjustment to the community from a variety of sources, including a number of medical practitioners. However, he remains in a parole status for a substantial period of time unless remedial action is taken by the parole authorities in Pennsylvania.

       
       

   12. In considering the above matters, it is concluded that, although revocation of Respondent's license is warranted, it would be appropriate for Petitioner to exercise its discretion pursuant to subsection 459.14(1)(b), Florida Statutes, to suspend the operation of such penalty and place him on probation under appropriate conditions, for a period of three years, or until his parole status has been terminated by the State of Pennsylvania, whichever occurs first. A condition of such probation will be to appropriately restrict Respondent's right or authority to prescribe or administer controlled substances listed in Chapter 893, Florida Statutes. In this manner, Respondent's actions will be subject to continued supervision during a substantial period of observation and control by a petitioner. It is believed that such a program will serve both the interest of the public and the individual to the extent possible.

RECOMMENDATION

That Petitioner revoke the license of Respondent, Maurice L. Kaye to practice osteopathic medicine, but that the operation of such revocation be suspended for the period and in the manner stated in Paragraph 8 of the foregoing Conclusions of Law.

DONE and ENTERED this 15th day of August, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

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

Maurice L. Kaye, D. O. Post Office Box 14202

St. Petersburg, Florida 33733

Docket for Case No: 79-000892

Orders for Case No: 79-000892