STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, Board of Medical ) Examiners, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2494
)
ALAM FARZAD, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on January 11, 1982, in Coral Gables, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Joseph W. Lawrence II, Esquire
Deputy General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Joseph R. Boyd, Esquire
BOYD & SMITH, P.A.
2441 Monticello Drive
Tallahassee, Florida 32304
and
Melvin Rubin, Esquire 2627 Biscayne Boulevard
Miami, Florida 33137
The issue for determination at the hearing was whether disciplinary action should be taken against the Respondent Alam Farzad, M.D., for allegedly taking an examination for her sister in 1972, in the State of Illinois which would qualify said sister for admission to an Illinois medical training program as a physician.
PRELIMINARY STATEMENT
Pursuant to a three count Administrative Complaint filed August 18, 1981, the Respondent Farzad was charged in Count One with violating Chapter 458, Florida Statutes, in that she allegedly practiced fraud or deceit in obtaining a license to practice medicine in violation of Section 458.1201(1)(b), Florida
Statutes (1971)(1972) and (1977). Respondent was charged in Count Two with violating a statute or law of the State of Illinois which statute relates to the practice of medicine or in part regulates the practice of medicine in violation of Section 458.1201(1)(k), Florida Statutes (1971)(1972) and (1977). Finally, Count Three alleged that the Respondent violated Section 458.1201(1)(m), Florida Statutes (1971)(1972) and (1977), through immoral unprofessional conduct, incompetence, negligence or willful misconduct.
At the final hearing the Department offered Exhibits 1-3, which were admitted. Nassar Farzad, M.D., testified on behalf of the Respondent. The Hearing Officer received into evidence Hearing Officer Exhibits 1 and 2. At the request of the Hearing Officer, certified copies of the statutes and rules governing the practice of medicine in the State of Illinois which were in effect in February, 1972, and at the present were filed with the Hearing Officer and official recognition is hereby taken of the same.
Proposed Recommended Orders were filed by the parties. Those findings not incorporated in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
FINDINGS OF FACT
The Respondent Alam Farzad is a currently licensed medical doctor practicing medicine in Dade County, Florida.
The Respondent was first licensed in Florida in 1975.
In February, 1972, the Respondent resided in Miami with her husband, Kiumaris Bakshandeh, having moved to the United States from Iran in 1971 where they had both studied medicine and received medical degrees. In February, 1972, the Respondent's sister, Iran Farzad Rafael, was residing in Chicago, Illinois.
Prior to February, 1972, the Respondent's sister graduated as a medical doctor in Iran and after moving to the United States, attempted to qualify for eventual licensure by taking an examination for foreign medical graduates administered by the Educational Council for Foreign Medical Graduates (ECFMG). In 1972 a passing grade was required on the examination by a foreign medical graduate in order to become eligible to take medical training in an intern program in the United States. Upon completion of the training for foreign professionals, another examination was required to be passed in order to become licensed in a state. Thus, the examination was a type of qualifying exam, the successful passage of which entitled a foreign graduate to receive medical training in the United States and eventually sit for the state medical licensing exam which was administered to all persons who desired to become licensed physicians.
The Respondent's sister took the ECFMG exam three times prior to February, 1972, and failed it each time.
At the request of her husband, the Respondent flew to Chicago in February of 1972, to take the ECFMG exam for her sister. The Respondent went to the examination site with the examination entrance papers she had taken from her sister, forged her sister's name at the examination site and took the examination using her sister's name. She subsequently received word from her sister that she had received a passing grade on the examination.
The night after taking the examination, the Respondent received a phone call from her husband at her sister's home. During the conversation between the Respondent's husband and sister, the husband requested that the sister perform an abortion on the Respondent in return for her help on the examination. The Respondent's sister refused the husband's request.
But for the Respondent taking and passing the ECFMG exam on behalf of her sister, the sister could not have practiced medicine or entered into a residency program. In 1978, the Respondent testified that her sister had practiced medicine in 1976 specializing in physical medicine and rehabilitation. However no official records were submitted by the Petitioner that the Respondent's sister is presently licensed or has been licensed as a physician in Illinois.
In 1976, the Respondent's husband used his knowledge concerning the ECFMG examination to coerce the Respondent into signing a property settlement and custody agreement in a pending divorce proceeding. In exchange for agreeing to the property and custody agreement, the Respondent's husband signed an affidavit that would allegedly ensure that no information concerning the 1972 examination would be made public.
In early 1978, the Respondent instituted proceedings in the Eleventh Judicial Circuit, Dade County, to set aside the child custody and support provisions contained in the final decree of dissolution of marriage between the Respondent and her husband on the grounds of coercion and duress. Following a lengthy hearing in which numerous witnesses were heard and exhibits entered into evidence, the Circuit Court in March, 1978, granted Respondent's motion to set aside the agreement and awarded custody of the couple's minor child to the Respondent.
Dr. Bakshandeh appealed the trial court's decision to the District Court of Appeal, Third District. The court affirmed the trial court noting that there was " . . . an abundance of evidence in the record. . ." to support the Respondent's contention that she had been subjected to coercion and duress by her husband into entering into the agreement and that such coercion and duress constituted "misconduct of an adverse party" which would authorize a trial court to set aside a final judgment. See Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3rd DCA 1979). The court went on to make, however, the following observation:
As a final note, we are disturbed by
an undisputed fact which emerges from this record. The wife Dr. Alam Farzad Bakshandeh is a physician licensed to practice medicine in Florida; the husband Kiumaris Bakshandeh is a chief resident urological surgeon for the University of
Miami. Both were originally from Iran where they received part of their medical training. The record reveals that in February, 1972, the wife took a medical examination for her sister Iran Farzad Rafael for admission to
a medical training program as a foreign physican in the State of Illinois. The examination was given in Chicago wherein the wife used her sister's name, took the exami- nation and passed it. The sister after
additional training and examination was ad- mitted to practice medicine in Illinois.
There is evidence that the husband urged the wife to take the examination for her
sister and thereafter used this indiscretion to blackmail the wife into signing the pro- perty settlement agreement herein. The re- cord does not reflect whether the appropriate medical authorities have been notified of
the above facts. We trust that such notifi- cation will be accomplished in the near future.
Thereafter, on April 24, 1979, the Clerk of the Third District Court of Appeal forwarded a copy of the court's opinion to the Board of Medical Examiners for appropriate action. This was presumably the first actual notice the Petitioner received concerning the Respondent's actions on behalf of her sister in February, 1972.
In July, 1981, a Board of Medical Examiners Probable Cause Panel found probable cause to believe violations of Chapter 458, Florida Statutes existed in this case and an Administrative Complaint was issued and filed against Respondent.
Respondent was licensed by the Board of Medical Examiners as a medical physician in approximately February, 1975.
The Petitioner filed the Administrative Complaint approximately 9 years after the incident in question occurred. The Petitioner failed to introduce evidence at the final hearing that while exercising due diligence it was unable to discover this incident prior to April, 1979.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. Section 120.57(1), Florida Statutes.
The Petitioner is charged with violating Sections 458.1201(1)(b), (k) and (m), Florida Statutes (1977) 1/ which provide as follows:
The board shall have authority to deny an application for a license or to
discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of any of the following:
* * *
(b) Making misleading, deceptive, un- true, or fraudulent representations in
the practice of medicine; employing a trick or scheme in the practice of medicine, practicing fraud or deceit in obtaining a license to practice medicine; or making a false or deceptive annual registration with the board.
* * *
(k) Violating a statute or law of this state, any other state, or the United States (without regard to its designation as either felony or misdemeanor), which statute or law relates to the practice of medicine or in part regulates the practice of medicine.
* * *
(m) Being guilty of immoral or unprofes- sional conduct, incompetence, negligence or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice
in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the
same is committed in the course of his practice, whether committed within or without this state.
In Count I of the Administrative Complaint, the Respondent is charged with violating Section 458.1201(1)(b), Florida Statutes (1977), by practicing fraud or deceit in obtaining a license to practice medicine. The uncontradicted testimony of the Respondent during the 1978 circuit court proceeding was that the exam taken by the Respondent for her sister was in the nature of a qualifying exam for foreign medical students which, if passed, permitted them to enter an internship program and eventually sit for a state licensing examination. The Respondent, therefore, did not practice fraud or deceit in obtaining a license to practice medicine for her sister, but rather, committed fraud or deceit in obtaining admission for her sister to the Illinois internship program. Additionally, even assuming Section 458.1201(1)(b), Florida Statutes, could be construed to be applicable to any and all steps leading up to the actual licensing examination, insufficient evidence was produced at the final hearing to support a finding that the Respondent's sister obtained a license to practice medicine in Illinois or elsewhere as a result of the Respondent's actions.
Count II charges the Respondent with violating a statute or law of the State of Illinois which statute or law relates to the practice of medicine or in part regulates the practice of medicine, said conduct being proscribed by Section 458.1201(1)(k), Florida Statutes (1977).
Section 16(r) of Chapter 91 of the Illinois Medical Practice Act, states:
Any person who employs fraud or deception in applying for or securing a license under
this Act, or in Passing any examination there- for; is guilty of a misdemeanor, and upon conviction thereof shall be punished as pro- vided by Section 35.1. (Emphasis supplied)
Petitioner argues that the Respondent violated this provision since passing the examination for foreign medical graduates "... was a necessary prerequisite to further training and ultimate licensure in Illinois, Florida and other states...." (Petitioner's Proposed Recommended Order at 9.) However, such a construction of this provision would subject an individual to criminal penalties for using fraud or deception in passing any examination which ultimately leads
to licensure as a physican in Illinois. This conceivably could apply to any examination taken in college, high school and so on, if degrees at those levels were required as a precondition to licensure. No Illinois cases have been cited to indicate that the courts in Illinois have construed the statute in the manner urged by Petitioner. Additionally, the statute is penal and, accordingly, must be strictly construed. When read in pari materia and strictly construed, the phrase" ...passing any examination there for..." must be limited to passing an examination for licensure as a physician. Compare, Lester v. Department of Professional and Occupational Regulation, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
Finally, Count III charges the Respondent with violating Section 458.1201(1)(m), Florida Statutes (1977), by being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. The facts in this case demonstrate an intentional act of misconduct by the Respondent which resulted in her sister receiving a benefit to which she was not entitled. The Respondent's actions on behalf of her sister were ethically and morally wrong. The fact that these events occurred in 1972, prior to the Respondent's licensure as a physician in Florida, does not divest the Board of jurisdiction in this case. See Gould v. State, 127 So. 309 (Fla. 1930). Since the facts relating to the 1972 incident were withheld from the Board of Medical Examiners by the Respondent at the time of her licensure in 1975, the Board's decision to issue a license was; not made on the basis of the actual facts and the Respondent should not be permitted to avoid possible disciplinary action based on intentionally withheld information. Therefore, the Board has sustained its burden of showing by a preponderance of the evidence that the Respondent's actions regarding the 1972 incident constituted immoral and/or willful misconduct. Also see Cirnigliaro v. Florida Police Standards and Training Commission, 7 Fla. Law Weekly at 281, filed January 14, 1982, and compare Turner v. Earle, 295 So.2d 609 (Fla. 1974).
As noted by the Petitioner in its Proposed Recommended Order concerning an appropriate penalty in this case, a substantial lapse of time has occurred since the incident in question and no evidence was introduced to demonstrate that the Respondent has engaged in any questionable conduct over the past ten years except the concealment of this particular situation. The Respondent has lived with this unfortunate situation for an extended period of time; it has affected her career and temporarily cost her custody of her only child. The Respondent deserves the opportunity to put this event behind her and, accordingly, it is RECOMMENDED:
That the Board of Medical Examiners enter a Final Order finding that the Respondent violated Section 458.1201(1)(m), Florida Statutes (1977), and imposing a private letter of reprimand.
Respondent's Motion To Dismiss The Administrative Complaint Based Upon Laches
And The Statute Of Limitations
The doctrine of laches does not preclude the initiation of a disciplinary proceeding in this case.
At the formal hearing the Respondent argued that the "doctrine of laches" precluded the initiation of the Administrative Complaint in 1981 for an act that occurred in 1972. The Motion to Dismiss filed by the Respondent on November 30, 1981, which asserted, inter alia, that the "equitable principles of
laches" acted as a bar to the instant disciplinary proceedings against the Respondent, was denied by the Hearing Officer on December 21, 1981. However, the Respondent was given the opportunity at the final hearing to establish a factual basis for the defense of "laches".
Assuming that the defense of laches is available as a defense in a Section 120.57(1) proceeding, the Respondent failed to establish at the final hearing that she was damaged by reason of the delay in filing the Administrative Complaint. While unexplained or unexcused delays for unreasonable lengths may constitute laches, the delay in this case from the time the Board had actual knowledge of the incident was neither unexplained nor unreasonable. See State ex rel. Shein v. Attwood, 64 So.2d 917 (Fla. 1953); Blocker v. Ferguson, 47 So.2d 694 (Fla. 1950). No discernible prejudice was demonstrated as a result of the mere passage of time since all of the witnesses who could testify concerning the 1972 incident testified during the civil proceeding in 1978. The Respondent, her husband, the Respondent's sister and brother-in-law were the only parties directly involved in this matter and their testimony was admitted at the final hearing through the official transcript of the 1978 Circuit Court hearing.
Moreover, while the parties in this case have presumed that the defense of laches is available as a defense in an administrative proceeding, no cases have been cited in support of such an assumption. See Section 95.11(6), Florida Statutes, which states in effect that laches follows the statute of limitations except it may be applied at any earlier time than the statute of limitations in an appropriate case. As discussed, infra, the legislative history of Chapter 95, Florida Statutes, raises questions concerning the applicability of Chapter 95, Florida Statutes, to administrative proceedings and, accordingly, the availability of the statute of limitations and laches as cognizable defenses in administrative disciplinary hearings.
The Statute of Limitations Codified at Chapter 95, Florida Statutes was intended to apply only to civil actions at law. 2/
In 1967 the Florida Law Revision Council was established. See Part IV, Chapters 13, Florida Statutes. 3/ The Council's functions included, inter alia, examining the common law, constitution, statutes and judicial decisions to discover defects and to recommend needed reforms and changes in order to eliminate antiquated and inequitable rules of law. Section 13.96, Florida Statutes (1971).
In 1972, the Council initiated a project which included identification of the statutes of limitation contained in the Florida Statutes and codification of the provisions in order to implement a central, uniform system applicable to all civil actions or proceedings. The Council completed its research in 1973 and submitted its recommendations and proposed bill, designated SB 895, to the Legislature. In 1974, the Council's recommended legislation was enacted into law. See Chapter 74-382, Laws of Florida. While the Legislature amended certain of the Council's recommendations concerning specific time limitations, the subsection drafted by the Council concerning the general application of Chapter 95, Florida Statutes, found at Section 95.011, Florida Statutes, was enacted as originally proposed by the Council.
Section 95.011, Florida Statutes, provides as follows:
A civil action or proceeding, called "action" in this chapter, including one brought by the state, a public officer, a political subdivision of the state, a municipality, a public corporation or body corporate, or any other governmental author- ity, shall be barred unless begun within the time prescribed in this chapter or, if the different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere. (Emphasis supplied)
The Respondent asserts that the intent of the legislature in enacting Section 95.011 Florida Statutes, was to apply its provisions to administrative proceedings as well as civil actions. In order to arrive at this conclusion, the Respondent argues that the word "civil" as used in Section 95.011, Florida Statutes, modifies only the term "action" and not "proceeding", and that the word "proceeding" is broad enough to include Chapter 120, Florida Statutes hearings. Since the intent of the legislature is of paramount importance in construing statutes, the Respondent concludes that consistent with this principle, Section 95.011, Florida Statutes, should be found applicable to proceedings held pursuant to Chapter 120, Florida Statutes.
However, applying the primary rule of statutory construction, that statutes are to be construed to effectuate rather than defeat legislative intent, an opposite conclusion from that urged by the Respondent is indicated.
The first analysis of the Council's proposed legislation concerning statutes of limitation was drafted June 7, 1972, by Thomas Bevis, Reporter. 5/ The Reporter's comments indicate that the provision which was enacted as Section 95.011, Florida Statutes, was drawn "heavily and exclusively" from a New York Rule of Civil Procedure, New York Civil Practice Law and Rules, CPLR Section
201. The original provision provided that an action, including one brought in the name of the State or any political subdivision of the State, "...must be commenced within the time limit prescribed...unless a different time [was] prescribed by law or a shorter period...prescribed by written agreement." As stated by the Reporter in his comment on this provision:
It may be advisable to include a definition of action as used above to expressly include all actions civil, criminal, legal and equitable, although it is a fair implication that such is the case absent any express definition. (Emphasis supplied)
The major revision made subsequent to the Council's first draft was the elimination of criminal matters from the scope of Chapter 95, Florida Statutes, and its focus solely on civil actions at law.
In an analysis of C/S for SB 895, the Council's Final Recommendation for Revision of Chapter 95, Statute of Limitations, the following explanation concerning the scope of the statutes of limitations was furnished to the legislature by the Council:
1 - Applicability - This section declares that a civil action shall be barred unless begun within the time prescribed in the chapter.... (Emphasis supplied)
Citing Reid v. Fain, 122 So.2d 322 (Fla. 2nd DCA 1960), for authority in its analysis, the Council informed the legislature that limitation statutes are concerned solely with time and have historically been applied only to actions at law. See also, Massey and Smith, Florida Civil Practice Before Trial, 10.1 -
10.2 (1975), in which the author, who was also the Executive Director of the Council when Chapter 95, Florida Statutes, was enacted, stated "[g]enerally, statutes of limitations for civil actions are found in Florida Statutes, Chapter 95 ..."
Nowhere in the official records of the Council or the legislature which involve the codification of statutes of limitation and laches, is there any indication that either body intended to include actions or proceedings other than those brought in courts of law or Article V courts, within the scope of Chapter 95, Florida Statutes. One of the stated purposes of the revision was to follow the trend to unite courts of law and de-emphasize their differences and no intent is evident to extend then existing case law concerning the applicability of statutes of limitations to administrative hearings which had been specifically held not to constitute actions at law. See Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260, 263 (Fla. 1973), "[a]n adjudicatorial proceeding before a public administrative body or officer is not an action at law."
Moreover, contemporaneously with its revision, the Council was also involved in a project which resulted in the enactment in 1974 of a revised Administrative Procedure Act (APA). See Chapter 74-310, Laws of Florida. The first draft of the APA was published in October, 1973. The statutes of limitation project was discussed, revised, and during the same general time period, submitted by the Council to the legislature for enactment in 1974.
In sum, the intent of the Law Revision Council and the legislature, which acted on the basis of the Council's information and recommendations in enacting Section 95.011, Florida Statutes, as ascertained from official records of both entities, is consistent with the position urged by the Petitioner in this case that the term "civil actions or proceedings" as used in Section 95.011, Florida Statutes was intended to apply only to civil actions at law and no intent is evident to apply Chapter 95, Florida Statutes to administrative hearings or proceedings. 6/
The Applicability of the District Court's Opinion in Bishop v. State of Florida, Division of Retirement, 4 FALR 111-J (Fla. 1st DCA 1982).
Subsequent to the filing of Proposed Recommended Orders in this case, the District Court of Appeal, First District, issued an opinion which applied Chapter 95, Florida Statutes, to a Section 120.57(1), Florida Statutes, administrative proceeding. See Bishop v. State of Florida, Division of Retirement, supra. Counsel were given the opportunity to file supplemental memorandums concerning the applicability of Bishop, supra, to the instant case, which have been filed and considered.
In Bishop, the issue before the court was whether the statute of limitations had run on a claim by three retired teachers, members of the teachers retirement system who were enrolled in Plan D, Teachers Retirement System, Chapter 238, Florida Statutes, for benefits payable pursuant to Section 238.O7(2)(d), Florida Statutes (1978). The teachers retired in 1973 and 1974 and initiated a Section 120.57(1) hearing in 1980. In the Recommended Order, the Division of Retirement argued and the Hearing Officer agreed that the applicable statute of limitations had run and proceedings under Section 120.57(1), Florida Statutes, were therefore, barred.
While affirming the Division's final order adverse to the teachers, the court disagreed with a legal conclusion contained in the order that the statute of limitations had run on the claim. The court concluded that the claim sounded in contract rather than tort and since the contract called for payment in installments, the statute of limitations ran against each installment from the day it became due. Issacs v. Deutsch, 80 So.2d 657 (Fla. 1957), which involved the running of the statute of limitations on a contract for child support, was cited by the court in support of this general proposition.
Noteworthy is the fact that in order to arrive at its ultimate legal conclusion, i.e., that the claim was not barred by the statute of limitations, the court necessarily presumed that Chapter 95, Florida Statutes, applies' to administrative proceedings.
In considering the precedential effect of Bishop the Respondent argues that it is controlling in this case while the Petitioner asserts the contrary. The Petitioner's position is that: (1) since the court did not specifically address the issue, the statement is presumably dictum, and (2) since the facts in Bishop did not involve a disciplinary proceeding, the case is not controlling in this proceeding.
Generally, dictum is considered to be an expression or statement on a matter not necessarily involved in a case or necessary to a decision thereof. It is a purely gratuitous observation or remark which is made and not necessarily involved in the case or essential to its determination. Bunn v. Bunn, 311 So.2d 387 (Fla. 4th DCA 1975). Unlike the doctrine of stare decisis, in which an appellate court's decision on issues properly before it and decided in disposing of the case is binding as precedent on courts of lesser jurisdiction, see Bunn, supra at 389, dictum is not generally binding, although in Florida, this rule is modified when dictum is stated by a court of last resort and no contrary authority exists. See Milligan v. State, 177 So.2d 75 (Fla. 2nd DCA 1975). Dictum should be afforded controlling weight if it is the
only reported statement of the law applicable to the particular facts presented. See generally, CJS, Courts 186-209.
Although the courts in this state have not specifically addressed the precise issue presented in the instant case, i.e., the applicability of Chapter
95 to Section 120.57, disciplinary proceedings, the Supreme Court has considered the issue when it was raised in the context of disciplinary proceedings brought by the Florida Bar against attorneys. In The Florida Bar v. McCain, 361 So.2d 700 (Fla. 1978), the Court rejected an argument that any statute of limitation applied to attorney disciplinary proceedings and observed that:
[t]here is no express statute of limi- tation governing attorney disciplinary proceedings. The statutory bar against actions at law has no application in a disbarment proceeding. (Footnotes omitted) McCain, supra, at 704
Additionally, the Court cited with approval the following quotation from People ex rel. Healy v. Hooper, 218 Ill. 313, 75 N.E. 896 (1905), at 899:
The statute of limitation has no appli- cation to delinquencies such as have been shown to exist. The court, in such cases, will consider an unexplained, unreasonable delay in presenting the charges and also whether, by reason of the delay, the ac- cused has been deprived of a fair opportunity of securing proof to meet the accusation,
but the proceeding for the disbarment of an attorney is not barred by the express terms of the statute of limitations, nor will the courts establish a limitation, as to the time in which such proceedings may be in- stituted, by analogy to the statute of limi- tations, unless from the nature of the cir-
cumstances of the particular case, it appears that it will be unjust or unfair to require the attorney to answer to such occurrences.
McCain, supra, at 705.
By refusing to find a statute of limitation applicable to attorney disciplinary proceedings, the Court declined to extend Its prior decision in State ex rel.
Turner v. Earle, 295 So.2d 604 (Fla. 1974), to attorney disciplinary proceedings instituted by the Florida Bar. In Turner the Court had imposed a two year statute of limitation on Judicial Qualification Commission investigations based on public policy. The McCain Court declined to follow the rationale of its earlier decision and stated:
[w]e reject the notation that a statute of limitation on criminal charges expresses by public policy or otherwise a period of limitation for investigation of attorney misconduct. Our responsibility to the public requires a more flexible rule. McCain, supra, at 705. 7/
Even though attorneys are subject to the jurisdiction of the Supreme Court and not the executive branch as is the case in all other regulated professions, there is no logical reason why a rule concerning the institution of time limitations for disciplinary proceedings should be applied by implication to one group and not to the other. Since no statute of limitation is specifically applicable to disciplinary proceedings involving either attorneys or any other regulated professionals consistent with the reasons expressed in McCain and the history of Chapter 95 set forth, supra, a statute of limitation should not be construed to apply to disciplinary proceedings involving either group.
Thus, to the extent the Court's decision in Bishop could be interpreted to extend Chapter 95 restrictions to administrative disciplinary proceedings instituted pursuant to Chapter 120, Florida Statutes, it is in apparent conflict with the Court's rationale in McCain, the legislative history surrounding the enactment of Chapter 95, and, therefore, in future cases involving this issue, should be construed as limited strictly to its facts.
As noted, supra, the delay in instituting this proceeding was not unreasonable under the circumstances and no prejudice was demonstrated by the Respondent. Accordingly, the Respondent's Motion To Dismiss based on the running of the statute of limitations is denied.
DONE and ORDERED this 26th day of July, 1982, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1932.
ENDNOTES
1/ The 1971 and 1972 versions of these statutory sections are in pertinent part identical to the 1977 statutes.
2/ Pursuant to an order of the Hearing Officer, counsel were requested to file memorandums of lab concerning the legislative history surrounding the enactment of Chapter 95, Florida Statutes. See generally, Rhodes, White and Goldman, The Search for Intent: Aids to Statutory Construction in Florida, 6 Fla.
St.U.L.Rev. 383 (1978).
3/ The Council was originally designated the Florida Law Revision Commission. See Chapter 67-472, Laws of Florida.
4/ The Council's records and work papers have been utilized in order to ascertain the legislative intent and interpret statutes enacted pursuant to the Council's recommendations. See, e.g., Lewis v. Judges of District Court of Appeal, 322 So.2d 16, 19 (Fla. 1975).
5/ All Law Revision Council records cited herein are part of the official records of the Council retained in the Florida Legislative Library. The pertinent legislative records are filed and available at the Florida State Archives.
6/ The Respondent also notes that Section 95.011, Florida Statutes, was amended to subject the state and other governmental agencies to Chapter 95. This amendment implements a goal of the Council to eliminate the special status of the government when engaged in litigation which had descended from common law.
See also Section 768.28, Florida Statutes, which waived sovereign immunity in tort. It did not, however, purport to extend Chapter 95 to administrative forums. In such proceedings, neither the state nor a private citizen is barred from maintaining an action as a result of the time limitations set forth in Chapter 95, Florida Statutes.
7/ This position is consistent with the dissenting views expressed by Justices Ervin and Boyd in Turner v. Earle.
COPIES FURNISHED:
Joseph W. Lawrence II, Esquire Deputy General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Joseph R. Boyd, Esquire BOYD & SMITH, P.A.
2441 Monticello Drive
Tallahassee, Florida 32304
Melvin Rubin, Esquire 2627 Biscayne Boulevard
Miami, Florida 33137
Dorothy Faircloth, Executive Director Florida Board of Medical Examiners Old Courthouse Square Building
130 North Monroe Street Tallahassee, Florida 32301
Samuel R. Shorstein, Secretary Department of Professional Regulation Old Courthouse Square Building
130 North Monroe Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,
Petitioner,
vs. CASE NO. 81-2494
ALAM FARZAD, M.D.
License No.25052
Respondent.
/
FINAL ORDER OF
THE BOARD OF MEDICAL EXAMINERS
This matter came for final action by the Board of Medical Examiners pursuant to Section 120.57(1)(b)9., F.S., at a public meeting on October 9, 1982, in Bal Harbour, Florida, for review of the recommended order of the hearing officer entered herein, and the exceptions filed by the Respondent, Alam Farzad, M.D.
The Respondent was given several opportunities to delineate for the Board, which, if any, of her written exceptions to the Recommended Order were exceptions to findings of fact found by the hearing officer, but the Respondent declined to do so. Thus, the Board considered each of the Respondent's written exceptions to the Recommended Order based upon their literal meaning, and determined that each of the exceptions were exceptions to the conclusions of law of the hearing officer. A transcript of the proceedings is available, if necessary.
FINDINGS OF FACT
Following a review of the complete record, the Board hereby adopts and incorporates by reference the Findings of Fact of the Hearing Officer.
CONCLUSIONS OF LAW
The Respondent's exceptions to the Conclusions of Law contained in Paragraphs one (1) through four (4) of the Respondent's Exceptions to the Recommended Order are found to be without merit and are rejected.
The Board hereby adopts and incorporates by reference the Conclusions of Law of the hearing officer.
The hearing officer's Recommendation in this case was for a "private letter of reprimand"; however, the penalties available to the Board of Medical Examiners for violations of Section 458.331(1), Florida Statutes, are set forth in Section 458.331(2), Florida Statutes, which provides as follows:
"(2) When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
Refusal to certify to the department an application for licensure.
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician." (Emphasis supplied.)
Although, the penalty of the "issuance of a reprimand" is available to the Board, a "private letter of reprimand" is not. Accordingly, based upon a review of the complete record by the Board, the Findings of Fact and the Conclusions of Law, IT IS THEREFORE
ORDERED AND ADJUDGED that the license to practice medicine in the State of Florida of Alam Farzad, M.D., be and hereby is reprimanded. This Order shall take effect on the date of filing.
DONE AND ORDERED this 20th day of October, 1982.
BOARD OF MEDICAL EXAMINERS
By: Dorothy J. Faircloth
cc: All Counsel of Record.
Alam Farzad, M.D.
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1990 | Final Order filed. |
| Jul. 26, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 20, 1982 | Agency Final Order | |
| Jul. 26, 1982 | Recommended Order | Respondent took qualifying medical exam for her sister prior to Florida licensure and never disclosed due to duress from husband. Recommended Order: private reprimand. |
