STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED LOUIS VIDAL, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1025

)

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

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on May 24, 1982, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon Respondent's denial of Petitioner's request for reinstatement of his medical license pursuant to Chapter 458, Florida Statutes. Petitioner requested an administrative hearing pursuant to Chapter 120, Florida Statutes, and the matter was referred accordingly.

APPEARANCES

For Petitioner: Fred Louis Vidal, M. D., pro se

20 Wayah Street

Franklin, North Carolina 28734

For Respondent: Chris D. Rolle, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301

At the hearing, Petitioner testified in his own behalf, and Petitioner's 12-part composite exhibit was admitted into evidence. Dorothy Faircloth, Executive Director of the Board of Medical Examiners, testified for Respondent. The parties entered into a joint stipulation just prior to the hearing, and the record was left open until June 7, 1982, to allow Petitioner to submit evidence on his continuing medical education.

Both parties submitted proposals which have been fully considered in the writing of this Recommended Order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

ISSUE

The primary issue in this case is whether Petitioner is qualified for reinstatement of his license to practice medicine in the State of Florida. There are two principal areas of concern:

1. Petitioner's conviction of illegally dispensing a controlled substance in Dougherty County, Georgia, on March 19, 1982; and

   
   

2. Whether Petitioner has obtained the 36 hours of Class I Continuing Medical Education (CME) credit required (12 hours for each year his license was inactive since 1979).

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Fred Louis Vidal, M.D., obtained licensure in Florida in 1949, holding License #4369.

      
      

   2. In 1966, Petitioner's license was suspended for nonpayment of fees.

      
      

   3. Section 458.321, Florida Statutes (1979), requires the Board of Medical Examiners to adopt a rule setting forth the type and required number of hours of Continuing Medical Education (CME) needed to reactivate a license. The Board's rule concerning this is Rule 21M-28.01, Florida Administrative Code, which requires 12 hours per year for each year the license is inactive. Therefore, Petitioner must show evidence of 36 hours of Class I, American Medical Association CME.

      
      

   4. Petitioner's request for reinstatement was denied by Order of the Board rendered March 9, 1982. The Board's Order contained a typographical error which was corrected by its Amended Order rendered on March 22, 1982.

      
      

   5. Petitioner offered no evidence at the hearing or before the record was closed on June 7, 1982, proving his attendance at any Class I, AMA approved CME courses.

      
      

   6. Petitioner testified that on March 19, 1982, he was convicted for illegally dispensing a controlled substance in Dougherty County, Georgia. The sentence ordered by the court in this case placed Petitioner on probation for five years and provided that he not practice medicine in the State of Georgia during that period of probation.

      
      

   7. Regarding his conviction, Petitioner was convicted of prescribing Percodan to a nurse who worked for the group of physicians employing the Petitioner. He prescribed Percodan for this nurse because she was suffering from severe headaches associated with tension. Petitioner stopped prescribing for the woman when he ceased to work for the group. Petitioner had warned the woman about depending upon the drug, but while working with her he saw no evidence that she was abusing it. At the time he left the group he ceased to write prescriptions for this woman.

      CONCLUSIONS OF LAW

      
      

   8. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Board of Medical Examiners is responsible under Chapter 458, Florida Statutes, for ensuring that every physician practicing in the State of Florida meet the minimum requirements for safe practice.

      
      

   9. Section 458.321, Florida Statutes, which is pertinent to Petitioner's request for reinstatement, provides as follows:

      
      

      1. A licensee may request that his license be placed in an inactive status by making application to the department and paying a fee in an amount set by the board not to exceed 50.

      2. A license which has been inactive for less than 1 year after the end of the biennium prescribed by the depart- ment may be renewed pursuant to

         s. 458.319 upon payment of the late renewal penalty. The renewed license shall expire 2 years after the date the license automatically reverted to inactive status.

      3. A license which has been inactive for more than 1 year may be reactivated upon application to the department.

         The board shall prescribe, by rule, continuing education requirements as a condition of reactivating a license.

         The continuing education requirements for reactivating a license shall not exceed 12 classroom hours for each year the license was inactive and in no event shall exceed 120 classroom

         hours for all years in which the license was inactive. Any license which is inactive for more than 10 years shall automatically be suspended. One year prior to this suspension, the depart- ment shall give notice to the licensee.

         A suspended license may be reinstated as provided in s. 458.331.

         
         

   10. Section 458.331, Florida Statutes, is also applicable and provides in pertinent part:

       
       

3. The board shall not reinstate the license of a physician, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and condi- tions set forth in the final order and that such person is capable of safely engaging in the practice of medicine.

1. The Florida law is clear that the applicant bears the burden of showing that he is qualified for the license sought. In this case the Petitioner had to show that he had the requisite number of CME credits, which he failed to do.

   
   

2. Petitioner did offer his testimony, supported by various letters, regarding the circumstances surrounding his conviction in Georgia for illegally dispensing a controlled substance. The Board presented no evidence contrary to that presented by the Petitioner.

   
   

3. Because Petitioner failed to show that he met the CME requirements and is unqualified at this time for reinstatement, it is unnecessary to address specifically the question of his conviction. However, if subsequently the Petitioner should reapply and demonstrate his attainment of the requisite CME units, it would be appropriate for the Board to reconsider this aspect of Petitioner's qualifications.

RECOMMENDATION

Having failed to show that he has the required number of Continuing Medical Education units, it is determined that the Petitioner, Fred Louis Vidal, M.D., is not qualified at this time for reinstatement of his license, and it is recommended that his application be denied.

DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 22nd day of July, 1982.

COPIES FURNISHED:

Fred Louis Vidal, M. D.

20 Wayah Street

Franklin, North Carolina 28734

Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301

Dorothy Faircloth, Executive Samuel Shorstein, Secretary Director Department of Professional

Board of Medical Examiners Regulation

130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

Docket for Case No: 82-001025

Orders for Case No: 82-001025