STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF EDUCATION, PROFESSIONAL )

PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1219

)

MITCHELL D. PAULSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 31 July 1979 at Miami, Florida.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

315 Third Street

West Palm Beach, Florida 33401

For Respondent: Respondent was not present or

represented by counsel.

By Petition dated 11 May 1979, the Professional Practices Council, State of Florida, Department of Education, seeks to revoke the Florida teaching certificate held by Mitchell D. Paulson, Respondent. As grounds therefor it is alleged that on or about November 19, 1977 Respondent attempted to obtain demerol with a forged prescription and was found to be in possession of a syringe containing amphetamines; that on or about April 3, 1978 Respondent altered a prescription issued to him by Dr. Martin Dayton; that Respondent was issued prescriptions for quaaludes on three occasions by Dr. Dayton; and that these acts constitute conduct which is grossly immoral, inconsistent with good morals and the public conscience and of a nature to bring the education profession into public disgrace and disrespect.

In view of the absence of Respondent, a delay of some 30 minutes from the time this hearing was scheduled to commence was taken before the hearing was called to order.

Exhibit 1, a letter sent in by registered mail to Respondent's address and there received by him was admitted into evidence for the purpose of showing this address, to which the Notice of Hearing was sent, was the proper address to which to notify Respondent of the time and place scheduled for hearing.

Thereafter, 4 witnesses were called by Petitioner and 10 exhibits were offered into evidence. During the proceedings the hearing recessed in Miami and

reconvened in Fort Lauderdale to allow one witness to testify who could not otherwise be present.

FINDINGS OF FACT

1. Mitchell D. Paulson, Respondent, holds a teacher's certificate issued by the Professional Practices Council, Petitioner, and was so certified at all times here involved.

   
   

2. On November 19, 1977 Respondent was driven to Hollywood from Miami by Dr. Scorzelli, who, at the time, was a licensed osteopathic physician. He took a prescription given to him by Dr. Scorzelli into a drugstore to have it filled. Due to lack of an address the pharmacist became suspicious and ultimately called the police who arrested Respondent. A search following the arrest disclosed a hypodermic syringe with a clear substance in the syringe later identified as demerol.

   
   

3. On December 20, 1977 Respondent was subpoenaed to appear at the office of the State Attorney in Fort Lauderdale, and pursuant to a grant of immunity testified fully regarding the November 19, 1977 incident involving Dr. Scorzelli and himself.

   
   

4. Dr. Martin Dayton testified that Respondent was a patient of his in 1978 and that on various occasions he prescribed medications for Respondent including Valium, Placidyl, quaaludes and Oxaine M. Exhibit 10, prescription No. 42180 dated 4-3-78 issued by Dr. Dayton to Respondent for Oxaine M was offered into evidence and clearly appears to have been altered to quaaludes. No evidence was presented that Respondent altered this prescription, or that anyone attempted to have this obviously altered prescription filled.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Notice of Hearing was sent by first class mail to the address at which Respondent had earlier receipted for a registered letter and was not returned to sender. The Division of Administrative Hearings therefore has jurisdiction over the parties and the subject matter of these proceedings.

   
   

6. With respect to material allegations 1 and 2 in the Petition to revoke Respondent's certificate, it is noted that these allegations involve the November 19, 1977 incident in which Dr. Scorzelli was a party and for which Respondent was granted immunity by the State Attorney on December 20, 1977.

   
   

7. Section 914.04, Florida Statutes, provides:

   
   

   No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or State Attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person

   shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against

   him upon any criminal investigation or proceeding.

   
   

8. This section providing for grant of immunity to witnesses testifying in certain prosecutions refers to immunization from more than criminal prosecution, in light of the provision that a person compelled to testify or produce evidence cannot be subject to any "penalty or forfeiture." Ciravolo v. The Florida Bar,

   261 So.2d 121 (Fla. 1978). It also provides immunity from an administrative hearing which could lead to revocation of a professional license. Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla. 1st DCA 1973).

   
   

9. Where, as here, a person is compelled to testify after being granted immunity, the immunity carries over disciplinary proceedings against him and he cannot be disciplined by the administrative agency for those acts for which he was granted immunity. Anson v. Department of Professional and Occupational Regulation, State Board of Architects, 354 So.2d 386 (Fla. 1st DCA 1977).

   
   

10. Accordingly, material allegations 1 and 2 must be dismissed.

    
    

11. With respect to material allegation 3, that Respondent altered the prescription given him for Oxaine M by Dr. Dayton, there was absolutely no evidence presented that Respondent altered this prescription. The most that can be said is that the prescription was issued and the copy of that prescription which was admitted into evidence had obviously been altered by someone. The mere fact that the prescription was given to Respondent and was thereafter altered, standing alone, does not raise a presumption that Respondent altered the prescription, let alone constitute clear and convincing evidence that he did so.

    
    

12. With respect to material allegation 4 that Respondent received prescriptions for quaaludes from a licensed physician during the months of April, May and June 1978, that allegation on its face does not state a cause of action. No evidence was presented to show that Dr. Dayton was not authorized to issue the prescriptions or that the prescriptions were issued for an unauthorized purpose. Class II controlled substances are issued daily by licensed physicians and Chapter 893, Florida Statutes, clearly authorizes this practice.

From the foregoing it is concluded that Mitchell D. Paulson received transactional immunity from the State Attorney in Broward County for all charges stemming from the November 19, 1977 transactions, that no credible evidence was submitted that Respondent altered the prescription for Oxaine M given him by Dr. Dayton on April 3, 1978, and that being issued prescriptions for controlled drugs by a licensed physician does not constitute an offense. It is therefore

RECOMMENDED that all charges in the Petition for Revocation of Teacher's Certificate filed 11 May 1979 against Mitchell D. Paulson be dismissed.

RECOMMENDATION

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of September, 1979.

K. N. AYERS Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1979.

COPIES FURNISHED:

Craig R. Wilson, Esquire

315 Third Street

West Palm Beach, Florida 33401

Mr. Mitchell D. Paulson 1640 Northeast 180th Street

North Miami Beach, Florida 33162

Mr. Hugh Ingram Administrator

Professional Practices Council Room 3, 319 West Madison Street

Tallahassee, Florida 32301

Docket for Case No: 79-001219

Orders for Case No: 79-001219