STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-309

)

RICHARD ENGLISH, M. D., )

)

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 13 May 1980 in Miami, Florida.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: Roy E. Black, Esquire

150 South East Second Avenue, Suite 1402 Miami, Florida 33131

and

Robert C. Josefsberg, Esquire 733 City National Bank Building

25 West Flagler Street Miami, Florida 33130

By Administrative Complaint filed 30 January 1980 the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Richard English, a licensed medical doctor, Respondent. As grounds therefor it is alleged that on or about November 19, 1979 Respondent, outside the scope of his professional practice, delivered methaqualone, a controlled substance, to Daniel Estes, in an amount of 2500 tablets.

At the beginning of the hearing, Respondent's Motion, made by and through his attorney, for a continuance on the ground of surprise at the appearance of Daniel Estes as a witness at these proceedings, was denied. Respondent alleged, and the allegation is supported by the attorney who had represented Estes at Estes' criminal trial, that Respondent's attorney had been advised that Estes would refuse to testify or give a deposition on constitutional grounds of self- incrimination. No request for a list of witnesses or other discovery had been directed to Petitioner by Respondent. However, in view of Respondent's attorney's having received misinformation, Respondent was advised that at the

conclusion of the hearing a motion would be entertained to hold the hearing open or to reopen the hearing for the purpose of allowing Respondent to submit evidence rebutting Estes' testimony if that testimony could be shown to constitute surprise and competent rebuttal evidence could be presented. At the close of the hearing Respondent was given two weeks within which to submit his motion for reopening these proceedings on the above grounds.

More than two weeks after the hearing, by Motion dated 4 June 1980 to Reopen Testimony for Rebuttal Evidence, Respondent, by and through his attorney, requests the hearing be reopened for the purpose of taking the testimony of Karen Netherton to rebut testimony of Estes. This Motion inaccurately describes the testimony of Estes respecting Karen's participation. Estes did not testify he discussed with Karen Respondent's ability to sell him Quaaludes, that she gave him English's telephone number or that she set up his arrangements with English. To the contrary, Estes' testimony was that he did not remember specifically who gave him English's telephone number, who mentioned English's name during the general discussion one evening, that Karen ever told him English could provide him with Quaaludes, or that she participated in any manner during Estes' dealings with Respondent. Under this posture of Estes' testimony, the allegation that Karen would testify she never gave English's name or telephone number to Estes nor did she initiate or act as go-between for Estes and English in the drug transaction, does not meet the requirement of surprise for which these proceedings would be reopened to allow Respondent to submit rebuttal testimony. Further, no representation was made that Karen was not available to testify at the conclusion of Petitioner's case or that presenting her testimony at that time would constitute any hardship to Respondent. In Petitioner's Response to Respondent's Motion to Reopen Testimony for Rebuttal Evidence dated

13 June 1980, Petitioner, by and through its attorney, alleges that Karen was present at the 13 May 1980 proceedings and could have been called as a witness by Respondent at that time. Accordingly, the motion is denied.

Petitioner also filed a Response to Respondent's Motion to Reopen the Testimony of Daniel Estes dated 13 June 1980 and opposed granting such motion. A motion making such a request has not been received from Respondent. Suffice it to say that if such a motion bad been received, in view of the California domicile of Estes, extraordinary grounds would have to be alleged to obtain affirmative relief.

Respondent's Motion to Strike the testimony of Terrence J. Igoe, also filed

4 June 1980, is denied for the reasons expressed in the conclusions of law below regarding testimony of the handwriting expert and the obtaining of exemplars.

After having considered all evidence and observed the demeanor of all witnesses, the following is submitted.

FINDINGS OF FACT

1. Richard English is registered as a physician by the Florida Board of Medical Examiners and at all times here relevant was so registered.

   
   

2. In October 1979 Daniel Estes, a resident of Hollywood, California, telephoned Richard English, Respondent, in Miami, Florida, stated he was a friend of Karen's and discussed mutual acquaintances and general topics. Estes had obtained Respondent's name and phone number from Karen Netherton or Jeff Leonard. At this time Estes shared a residence with Jeff and another individual named Bryan. Estes met Karen, an airline hostess, when she visited Bryan at this residence on Hillside Avenue.

3. At a general discussion of drugs one evening at the shared residence Respondent's name was mentioned as a source of Quaaludes. Following the initial call by Estes to Respondent a second call was made by Estes a few days later.

   At this time comments were made regarding Estes' desire to acquire drugs and Respondent stated he could provide them.

   
   

4. Estes is now and was in 1979 employed as manager of a restaurant in Beverly Hills, California called the BAGELNOSH. The telephone number of the BAGELNOSH is (213) 274-8538. The telephone number of the residence Estes shared-with Jeff and Bryan is (213) 650-4935. Respondent's unlisted telephone number in Miami is (305) 821-1929.

   
   

5. Telephone Company records of toll calls made from Respondent's telephone in October and November 1979 were admitted into evidence as Exhibit 2. These records reveal that between October 27, 1979 and November 16, 1979 a total of 21 direct dial calls were made from the telephone in Respondent's residence to the telephone numbers for the BAGELNOSH and for the Hillside Avenue residence. The last of these calls was made 16 November 1979.

   
   

6. On Sunday, 18 November 1979, Estes departed Los Angeles airport and arrived in Miami around 7:30 a.m., 19 November. Upon arrival he called Respondent's residence and was given directions from the airport to the residence at 19708 Bobolink Drive. Estes journeyed from the airport to Respondent's residence near 67th Avenue and 197th Street N.W. by taxi. Upon arrival, in addition to the street address he had been given, a red Jaguar was parked in front of this townhouse as Respondent had been told to expect. When he rang the doorbell the intercom was answered by Karen, who opened the door to let Estes into the residence.

   
   

7. There Estes, for the first time, met Respondent. After an hour or so of general conversation, Respondent and Estes went into the dining room, leaving Karen resting on a couch in the living room. There they discussed the quantity of drugs desired by Estes and other business arrangements. Respondent took from a closet in the dining room a quantity of pills, which he placed on the table for Estes to count. Respondent told Estes these pills were of pharmaceutical quality, which led Estes to believe they were counterfeit and not manufactured by the pharmaceutical house which stamps methaqualone tablets "LEMMON 714".

   
   

8. For the next hour or more Estes counted out 2500 pills which had stamped on them "LEMMON 714". The pills were placed in small, clear plastic bags and these bags were placed in four larger plastic bags and the four larger bags were placed in a black, plastic garbage bag Estes had brought with him. This bag was placed in a brown suitcase Estes had also brought with him.

   
   

9. During the discussion it was agreed that Estes would take the pills on consignment and remit money to Respondent as he sold them after his arrival in California. Respondent gave Estes a piece of paper from a small pad (Exhibit 5) on which Respondent had written the cost of the pills as $1.30 each, for a total cost of $3,250 plus $250 commission; sales of 2500 pills at $4.00 each for

   $10,000, leaving a profit of $10,000 - $3,500 = $6,500, which was to be split

   50-50 ($3,250 each); and upon completion of the sale, Estes was to have remitted to Respondent $6,750 ($3,500 + $3,250). Estes further agreed to call Respondent every other day from California to keep him abreast of Estes' progress in selling the pills.

10. A taxi was called and around 11:30 a.m. Estes departed Respondent's residence for the Miami International Airport. Upon his arrival there Estes paid the taxi driver and proceeded to the National Airlines ticket counter.

    
    

11. Upon exiting the taxi, Estes was observed by members of the Dade County Police Department's narcotics squad. His actions created suspicions in these officers, one of whom asked the cab driver where the fare had been picked up. He was told 197 Street and 67th Avenue, N.W. These officers followed Estes to the ticket counter and observed him check the brown suitcase which had no identification on the outside. They then followed him through the main lobby of the airport to Concourse F, where Estes turned towards the National Airlines departure gate. He had observed these officers following him and appeared nervous. As soon as he reached Concourse F, the officers approached Estes, who was carrying a small blue carry-on bag, and identified themselves as police officers. They asked for Estes' name and identification and looked at his plane ticket. Asked if he had any additional luggage, Estes initially said "No", but soon thereafter acknowledged that he had checked a bag. When asked if he would object to the officers looking in the bag that had been checked, Estes gave them permission to do so.

    
    

12. Before going to the luggage room the officers, with Estes' permission, removed a notebook (Exhibit 3) from the blue carry-on luggage and a Guest check (Exhibit 4) on which various information had been written and Exhibit 5 from Estes' pocket.

    
    

13. At this hearing, Estes identified the writing on Exhibit 4 to be his except for the telephone number, 305 821 1929, (Respondent's number), which he testified had been written by Jeff or Bryan before he left California. On the page of Exhibit 3 marked at the hearing by a paper clip, Estes identified the blue ink writing as having been written by him before leaving California and the pencil writing thereunder as notes he made while calling Respondent's residence from the airport the morning of 19 November 1979. Thereon Bobolink Drive is identified as 67th Avenue and a notation of Red Jaguar appears.

    
    

14. Upon arrival at the baggage area Estes' suitcase was recovered and, with his permission, opened by the officers. Therein was found the black plastic bag from which the four clear plastic bags containing the pills were extracted. Lemmon 714 on these pills could be seen through the plastic and the officers recognized this as methaqualone, a Class II controlled substance. Subsequent analysis of samples of these pills confirmed they were, in fact, methaqualones, known on the street as Quaaludes or "ludes". When compared to similar pills from the pharmaceutical company that stamps its pills Lemmon 714 the pills removed from Estes' bag did not appear to be exactly the same, either physically or chemically. The physical difference is apparent in the photograph introduced as Exhibit 7 where the pill taken from Estes is the lower left photograph in the exhibit, and the other three pills shown were purchased from a drug store.

    
    

15. Estes was placed under arrest and taken to the police station for booking. En route he told the police where he had obtained the pills and the circumstances under which they were in his possession. After making a sworn statement to the police containing most of the relevant facts, with a few inaccuracies to protect his friends in California as well as Karen, whose name was not mentioned to the police, Estes was driven by the police to the address of Respondent at 19708 Bobolink Drive, where he pointed out Respondent's town house, in front of which the same car was parked when he left shortly before noon. Since Respondent occupied a town house similar in outside appearances to

    those on both sides, Estes' best identification, other than street address, was the parked vehicle on the street in front of the building.

    
    

16. Estes was returned to the police station and a search warrant was obtained to search Respondent's town house. Results of that search are not relevant to these proceedings.

    
    

17. Estes was subsequently charged with possession of controlled substances and released on bail. At his arraignment after his motion to suppress the evidence was denied, Estes pleaded nolo contendere. He is awaiting sentencing which is scheduled for 5 June 1980. At Estes' arraignment he was represented by Neil C. Schuster. Following his plea, Estes was advised by Schuster not to cooperate with the police in presenting evidence against Respondent. Estes testified that he pleaded guilty following the denial of the motion to suppress the evidence against him. On cross-examination he acknowledged that he did not know the difference between nolo contendere and guilty and that it was his intent at his arraignment to admit the facts surrounding his arrest and to cooperate with the police. However, his attorney did all the speaking for him at that time.

    
    

18. Following his return to California, Estes became aware of the possibilities of obtaining probation and withholding adjudication of guilt in his own trial if he agreed to testify against Respondent. He did not contact Schuster to relay this idea, but called one of the police officers who had arrested him on November 19, 1979. Estes was advised that if he did cooperate with the police and the Petitioner in this case, that a recommendation for probation would be made to the judge if the judge asked for such a recommendation. Estes was not told or promised that testifying in these or any other proceedings against Respondent would result in a lesser sentence when his sentencing time arrived.

    
    

19. The police officer contacted the assistant state attorney handling Estes' case, who put him in touch with Petitioners' attorney and the latter in touch with Estes. Arrangements were made to bring Estes to Miami for this hearing and Estes testified. Prior to taking the witness stand, Estes told Schuster, who had arrived to confirm the representations made to Respondent's attorney that Estes would invoke his privilege against self-incrimination if subpoenaed for deposition, trial or hearing, that he was dismissing him as his attorney. During his testimony Estes expressed dissatisfaction with the legal representation he had received from Schuster.

    
    

20. Prior to meeting Respondent on 19 November 1979 Estes had never seen Respondent. No medical examination of Estes was conducted by Respondent and in no manner was Estes a patient of Respondent.

    
    

21. Inconsistencies in Estes' statements initially made to the police, the sworn statement and his testimony at this hearing were minor and were explained by Estes as due to:

    
    

    1. He had taken one methaqualone prior to his arrival at the airport and, as a result, was somewhat groggy;

    2. he was frightened by the attention he received from the police; and

    3. He didn't want to involve any of his friends in California, including Karen, who was at Respondent's residence when Estes arrived.

22. Estes' testimony that he had never been arrested or charged with a crime prior to November 19, 1979 was unrebutted, as was his testimony that he was not a user of drugs although he had taken a "lude" once or twice prior to November 19 for the purpose of helping him sleep. Generally, Estes was a credible and believable witness whose inconsistencies in prior statements were the type to be expected under the circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

24. Section 458.331(1), Florida Statutes, lists numerous acts the commission of which shall constitute grounds authorizing various disciplinary actions be taken ranging from revocation of license to probation. Among these grounds are:

    
    

    (q) Prescribing, dispensing, administering, mixing or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purpose of this paragraph,

    it shall be legally presumed that prescribing, dispensing, administering, mixing, or other- wise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent.

    
    

25. While it is here obvious that Respondent was not prescribing or administering the methaqualone to Estes, be could be said to be dispensing this drug. Webster's New Collegiate Dictionary (1977) defines dispense as:

    
    

    1. to deal out in portions; to prepare and distribute. The etymology of the word is from Latin, dispensare, meaning, to dis- tribute.

       
       

26. Respondent was certainly distributing methaqualone when he gave 2500 pills to Estes for the purpose of transporting them to California for further distribution and sale. At the time these drugs were given to Evans he was not a patient of Respondent and no evidence whatsoever was presented that the dispensing of these drugs was in any manner related to Respondent's professional practice.

    
    

27. At the hearing Respondent objected to the expert testimony that Exhibit 5 was written by Respondent. The grounds for this objection was that the exemplars which were used to identify Exhibit 5 as having been written by Respondent had been provided by Respondent pursuant to a court order; that the court order was issued for the taking of exemplars with which to identify documents seized from Respondent's residence pursuant to a search warrant; and this search warrant was subsequently held by a court to be invalid. Respondent contends the exemplars fall into the category of evidence inadmissible under the fruit-of-the-poisonous-tree doctrine.

28. This argument is without merit. In the first place, the testimony of the expert witness that Exhibit 5 was written by Respondent is not essential to the Respondent to that document. Estes' testimony was uncontradicted that Exhibit 5 was given to him by Respondent to show how the sale of the pills at $4 each would result in a profit to both Respondent and Estes. It is really immaterial if Exhibit 5 was written by Respondent, his accountant, or a stranger. Clearly, Respondent, in explaining Exhibit 5 to Estes, adopted the sense of the writing thereon as his own whether or not his hand held the pen.

    
    

29. Secondly, the constitutional privilege against self-incrimination does not extend to compelling an accused to give an exemplar of his handwriting. Lacey v. State, 239 So.2d 628 (Fla. 2nd DCA 1970).

    
    

30. There was no question of illegal search and seizure in obtaining Exhibit 5. The fact that the reason the court ordered the exemplars from Respondent has ceased to exist in no wise affects the exemplars or any further use to which these exemplars may be put.

    
    

31. This case is not one where physicians might disagree on the appropriateness of the decision to dispense the drugs. Nor does it involve a situation where a legitimate issue could be raised that the quantity was not excessive. What we have here is a situation where Respondent has assumed the position of a wholesaler of illegal drugs.

    
    

32. The statutory legal presumption flowing from dispensing 2500 methaqualone pills to one individual is that such distribution is not appropriate and not in the course of the physician's professional practice.

    
    

33. From the foregoing it is concluded that Respondent dispensed Class II controlled substances, to wit: methaqualone, to Daniel Estes not in the course of Respondent's professional practice. It is further concluded that this is not a slight abuse of the authority of a physician to issue a prescription improperly but constitutes an out-and-out engagement by Respondent in the distribution and sale of dangerous drugs in total disregard of the dangers inherent in such distribution. It is therefore

RECOMMENDED that the license of Richard English, M. D., to practice medicine in the State of Florida be revoked.

Entered this 20th day of June, 1980.

1. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

   2009 Apalachee Parkway

   Tallahassee, Florida 32301

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1980.

   COPIES FURNISHED:

   
   

2. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

Roy E. Black, Esquire

Suite 1402, 150 S.E. Second Avenue

Miami, Florida 33131

Robert C. Josefsberg, Esquire 733 City National Bank Building

25 West Flagler Street Miami, Florida 33130

Docket for Case No: 80-000309

Orders for Case No: 80-000309