STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1321

) GARTRELL JEROME GAINES, JR., 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 at Lawtey Correctional Institute, Lawtey, Florida, on October 11, 1982.

APPEARANCES

For Petitioner: Gerald S. Bettman, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Gartrell J. Gaines, Jr., Pro Se

Lawtey Correctional Institute Post Office Box 229

Lawtey, Florida 32058

By Administrative Complaint filed 5 November 1981 the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Gartrell Jerome Gaines, Jr., as a medical doctor. As grounds therefor it is alleged that Respondent participated in a scheme involving the illegal obtaining and diversion of controlled substances by providing blank prescriptions for compensation, which prescriptions were thereafter forged and exchanged for controlled substances. By Amendment to the Administrative Complaint filed 28 September 1982, which Amendment was approved by this Hearing Officer, the Administrative Complaint was amended to include a charge that Respondent, on or about 1 November 1979 was adjudged guilty of possession of a controlled substance with intent to distribute and possession of the controlled substance by deception.

At the hearing two witnesses were called by Petitioner, Respondent testified in his own behalf, and three exhibits were admitted into evidence. Exhibit 3, which had been timely requested by Petitioner but not received prior to the hearing, was admitted as a late filed exhibit. This exhibit is a certified copy of the adjudication and sentencing of Respondent in Case No. 79-

296 CF A 02 in the Circuit Court of the Sixteenth Judicial Circuit in and for Palm Beach County, Florida.

Proposed findings submitted by Petitioner and not included below were deemed immaterial or unnecessary to the results reached.

FINDINGS OF FACT

1. At all times here relevant Respondent was licensed as a medical doctor by the Florida Board of Medical Examiners and holds license No. ME 005851.

   
   

2. On 1 November 1979 Respondent was adjudged guilty of possession of a controlled substance with intent to distribute and possession of a controlled substance by deception. He was sentenced to an "indeterminate term of from six

   (6) months to five (5) years" and was committed to the Lawtey Correctional Institute, Lawtey, Florida.

   
   

3. John Carroll, a narcotics detective with the Palm Beach County Sheriff's Department, testified that he had conducted the investigation which led to the arrest and conviction of Respondent. This witness had no personal knowledge that Respondent provided one Fowler with blank prescription forms or forms containing only Respondent's signature, that Fowler paid Respondent cash, or that Respondent knew or should have known that Fowler was obtaining controlled substances with these forged prescriptions and selling these substances on the street.

   
   

4. In his testimony Respondent admitted that he could have approved some forged prescriptions when called by the pharmacist to verify the prescriptions without knowing who the prescriptions were for.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Section 458.1201, Florida Statutes (1977), provides in pertinent part:

   
   

   1. The board shall have authority

      to . . . discipline a physician licensed by this chapter . . . who, after hearing has been adjudged unqualified or guilty of any of the following:

      * * *

      1. Making misleading, deceptive, untrue, or fraudulent representations in the practice of medicine . . . .

      2. Being convicted of a felony in the courts of this state . . . .

      * * *

      (h) Engaging in any unethical, deceptive, or deleterious conduct or practice harmful to the public, in which proceeding proof

      of actual injury need not be established.

      * * *

      (k) Violating a statute or law of this state . . . which statute or law relates to the practice of medicine or in part regulates the practice of medicine.

      * * *

      (m) Being guilty of immoral or unprofessional conduct . . . .

      
      

7. Respondent was also charged with violating the provisions of Section 458.331(1), Florida Statutes (1980). However, these provisions, not included within the statutes in existence at the time of the commission of the act forming the basis, for the allegations, are disregarded. Otherwise, they would be invalid as constituting ex post facto laws.

   
   

8. In this connection it is noted that the Amended Administrative Complaint alleges Respondent, in being adjudicated guilty of a felony involving the practice of medicine, violated Section 458.331(1)(c), Florida Statutes (1980). However, this offense is included within Section 458.1201(1)(c) and (k), Florida Statutes (1977), above quoted, which were in effect at the time of the commission of the acts for which Respondent was adjudicated guilty on November 1, 1979.

   
   

9. No credible evidence was presented that Respondent participated in a scheme involving the illegal obtaining and diversion of controlled substances as alleged. The only competent evidence in this regard is the court documents adjudicating Respondent guilty of possession of a controlled substance with intent to distribute, and possession of a controlled substance by deception, a sentence of six months to five years imprisonment and testimony that the charges involved Respondent's practice of medicine.

   
   

10. An administrative tribunal measures proof presented to it by a preponderance of the evidence standard. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4 DCA 1974) and the burden of proof is on the party asserting the affirmative. Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1 DCA 1977). Here, the burden is on the Petitioner to establish, by a preponderance of the evidence, that Respondent committed the acts as alleged and that those acts constitute violations of the statutes as alleged.

    
    

11. The only evidence presented that Respondent participated in a scheme involving the illegal obtaining and dispensing of controlled substances was the testimony of Detective Carroll relating what he learned from others during the course of his investigation. This is hearsay evidence and, in an administrative proceeding, a finding cannot be founded on hearsay testimony that would not be admissible, over objection, in civil suits. Section 120.58(1)(a), Florida Statutes.

    
    

12. From the foregoing it is concluded that the evidence will not support the finding that Respondent is guilty of participating in a scheme involving the illegal obtaining and diversion of controlled substances and of violating Section 455.1201(1)(b), (h), and (m), Florida Statutes (1977), and Section 485.331(1), Florida Statutes (1980), as alleged. Accordingly, Respondent must be found not guilty of those charges. It is further concluded that the Respondent was convicted of a felony involving the practice of medicine in the Circuit Court in and for Palm Beach County in Case No. 79-296 CFA 02, as alleged. Based solely on this finding, it is

RECOMMENDED that the license of Gartrell Jerome Gaines, Jr., as a medical doctor be REVOKED.

ENTERED this 1st day of November, 1982, at Tallahassee, Florida.

K. 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 1st day of November, 1982.

COPIES FURNISHED:

Gerald S. Bettman, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Gartrell Jerome Gaines, Jr. Lawtey Correctional Institute Post Office Box 229

Lawtey, Florida 32058

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001321

Orders for Case No: 82-001321