STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS K. THOMAS, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1921

)

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

)

Respondent. )

)

RECOMMENDED ORDER OF DEFAULT

Pursuant to notice, this matter came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on December 9, 1982, in Tallahassee, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Chris Rolle, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

This proceeding was initiated on the "petition" of Dr. Thomas K. Thomas, M.D., for a formal proceeding pursuant to Section 120.57(1), Florida Statutes, whereby he sought to assert his rights to retention of his physician's license, concerning which the Board of Medical Examiners served upon him its notice of intent to revoke the same. Although the licensee doctor is styled the Petitioner in this proceeding, in reality the Department of Professional Regulation, Board of Medical Examiners carries the burden of proof and should, in reality, be termed a Petitioner in accordance with its interest in this proceeding which is to revoke a license which has already been issued to Dr.

Thomas. Thus, Dr. Thomas' interest is actually that of a Respondent. Thus, it was ruled at the outset of the hearing that the Board of Medical Examiners and Department of Professional Regulation have the burden of proof and must present a prima facie case in this proceeding, in spite of the fact that Dr. Thomas failed to appear. The Department and Board as "Petitioner presented Dorothy J. Faircloth, the Executive Director of the Board of Medical Examiners, as its sole witness at the hearing and presented composite Exhibit One, consisting of various letters to Dr. Thomas from Ms. Faircloth, various records of the Board, and the Order of the Board entered June 10, 1982, constituting, in effect, its notice of intent to revoke Dr. Thomas' license. Upon receipt of that letter, Dr. Thomas requested the subject hearing by letter of June 21, 1982, which letter is contained in Exhibit One. In essence, it is alleged by the Board that the licensee, Dr. Thomas K. Thomas, has not met the statutory requirements for retention of his license by endorsement, inasmuch as he has not demonstrated

that he used his Florida license by actively engaging in the practice of medicine in Florida within three (3) years after issuance of that license, nor that he continued practicing in Florida for a minimum of one year's duration.

FINDINGS OF FACT

1. The sole witness for the Petitioner, Dorothy J. Faircloth, established that the Respondent, Dr. Thomas K. Thomas, M.D., was licensed by endorsement by the Board on May 8, 1979. On-March 19, 1982, Witness Faircloth, as Executive Director of the Board, sent a letter to the Respondent, Dr. Thomas, indicating that the records of her office showed that he was licensed by endorsement on the above date and that he had not complied with Section 458.313, Florida Statutes, by demonstrating to the Board that he had actively engaged in the practice of medicine in Florida within a three year period after issuance of the license by endorsement, provided for in that Section, nor that he had continued that practice in Florida continuously for a minimum period of one year. That letter further informed him that if the establishment of his Florida practice was postponed due to the necessity of obtaining additional training or because of military service, then he should submit proper documentation in affidavit form or properly certified to establish that he was in an approved training program at the time of receiving his license, until a date certain, or was in the military service. The letter informed him that in order to avoid cancellation of his license by endorsement he should submit proper documentation in affidavit ford or properly certified to the effect that he had been actively engaged in the practice of medicine within the three-year period after issuance of that license and that he had continued his practice for a minimum of one year. This letter was elated March 19, 1982, and an identical letter pursuant to the Board's procedure was sent one month later on April 19, 1982, which constitute two written warnings sent to the Respondent's last known address and which indeed was shown to be the address from which the letter requesting this proceeding was posted.

   
   

2. The doctor failed to demonstrate in the requested manner that he had complied with Florida practice requirements for his licensure by endorsement and accordingly on June 10, 1982, an order was entered by the Board of Medical Examiners declaring his licensure by endorsement void and of no force or effect. By his letter of June 21, 1982, the doctor petitioned for a formal proceeding, in which petition he acknowledged that he had not been able to come to Florida to practice medicine within the three years of acquiring his license by endorsement due to "circumstances beyond my control." This letter was admitted into evidence as a part of Exhibit One. The cause was then transmitted to the Division of Administrative Hearings for a formal proceeding, the hearing being held on the above date. Dr. Thomas failed to appear at the hearing. It was established that Dr. Thomas has not practiced in Florida since his licensure by endorsement on May 5, 1979.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

4. The Respondent is a licensed physician holding license number ME0034516, issued by endorsement by the Florida State Board of Medical Examiners, on May 5, 1979.

5. The Petitioner, State of Florida, Department of Professional Regulation, Board of Medical Examiners, is charged with enforcement of the provisions of Chapter 458, Florida Statutes, concerning regulation of the admission to practice, practice standards and professional practice and conduct of physicians in the State of Florida.

   
   

6. Section 458.313(3), Florida Statutes, provides in pertinent part as follows:

   
   

   1. license so issued by endorsement shall become void and of no force in effect unless the recipient utilizes the same by actively engaging in the practice of medicine in this state within three years after issuance of the license and continues practice in this state for a minimum period of one year. Use in residence may be postponed until the holder has been discharged from military service

      of the United States.

      
      

7. The evidence conclusively establishes that the Respondent, Dr. Thomas

K. Thomas, M.D., was served with notice of the Board's inquiry into the question of whether of not he had complied with this subsection in terms of practicing within the State of Florida since licensure and was ultimately duly noticed of the Board's intent to revoke his license and was duly noticed of this formal proceeding before the Division of Administrative Hearings on December 9, 1982, after the Respondent had requested such a formal proceeding pursuant to Section 120.57(1), Florida Statutes. At the hearing in this cause, the Respondent, Dr. Thomas K. Thomas, M.D., failed to appear. The evidence further conclusively establishes that the Petitioner, through the testimony of Dorothy J. Faircloth, the Executive Director of the Board of far Medical Examiners, as well as Exhibit One, established that the above statutory authority had not been complied with by Dr. Thomas and indeed he had never practiced in the State of Florida since his licensure by endorsement on May 5, 1979. Inasmuch as the doctor was conclusively shown to have not complied with the above authority, his license should be revoked.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law and the evidence in the record, it is therefore

RECOMMENDED:

That license number ME00345I6 issued to Dr. Thomas K. Thomas, M.D., on May 5, 1979, be revoked.

DONE and ENTERED this 30th day of March, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 30th day of March, 10983.

COPIES FURNISHED:

Chris D. Rolle, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Thomas K. Thomas, M.D. 842 Moorland

Grosse Point Wood, MT 48236

Dorothy J. Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS K. THOMAS, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1921

)

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

)

Respondent. )

)

NOTICE OF DEFAULT

The parties to the above-styled proceeding are hereby advised that a Recommended Order of Default has been entered against the Petitioner, Thomas K. Thomas, M.D., by the undersigned Hearing Officer on March , 1983. Pursuant to Rule 28-5.211(2), the Petitioner shall have fifteen (15) days in which to file a motion to set aside said default.

DONE and ENTERED this 30th day of March, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 30th day of March, 1983.

COPIES FURNISHED:

Chris D. Rolle, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Thomas K. Thomas, M.D. 842 Moorland

Grosse Point Woods, MT 48236

Dorothy J. Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001921

Orders for Case No: 82-001921