STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-0264

)

BERNARD GROSS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this cause was held pursuant to notice in Miami, Florida, on November 30, 1983, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was prosecuted on an Administrative Complaint containing three counts filed by the Petitioner, Department of Professional Regulation, Board of Medical Examiners, against the Respondent, Bernard Gross. In summary, Count I alleges that the Respondent delivered methaqualone tablets in an attempt to sell them to undercover agents of the City of Miami Police Department, contrary to the provisions of Section 458.331(1)(q), Florida Statutes, which prohibits prescribing a controlled substance other than in the course of professional practice. Count II alleges that the Respondent failed to prescribe controlled substances in good faith and in the course of his professional practice, based upon the facts stated in Count I, contrary to Section 893.05(1), Florida Statutes, and thereby in violation of Section 458.331(1)(h), Florida Statutes. Count III alleges that the Respondent knowingly delivered 200 grams or more of methaqualone in violation of Section 893.135(2)(e), Florida statutes, 1/ and thereby Section 458.331(1)(h), Florida Statutes, based upon the facts alleged in Count I.

APPEARANCES

For Petitioner: Barbara K. Hobbs, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Joel Hirschhorn, Esquire, and

Harry Solomon, Esquire

742 North West 12th Avenue Miami, Florida 33136

ISSUES

The issue in Count I of the Administrative Complaint is whether the Respondent violated Section 458.331(1)(q), Florida Statutes, by prescribing a controlled substance other than in the practice of his profession. The issue in Count II is whether the Respondent violated Section 893.05(1), Florida Statutes,

by failing to prescribe controlled substances in good faith and in the course of his professional practice, and thereby violated Section 458.331 (1)(h), Florida Statutes. The issue in Count III is whether the Respondent violated Section 893.135(1)(e), Florida Statutes, by knowingly delivering 200 grams or more of methaqualone, and thereby violated Section 458.331(1)(h), Florida Statutes.

Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. The Respondent, Bernard Gross, is a licensed medical doctor, having been issued license number ME 009774. His last known address is 13550 Memorial Highway, North Miami, Florida 33161. (See prehearing stipulation of the parties.)

   
   

2. On April 20, 1982, Arthur Serig and Robert Fetner, undercover police officers of the City of Miami, met with the Respondent at the Miami Marina in the vicinity of Biscayne Boulevard at Sixth Street in Miami, Florida, to obtain a sample of methaqualone (trade name "Quaalude") tablets which the Respondent had offered to sell to Officer Serig. At said meeting, the Respondent delivered a brown paper bag to Officer Serig containing 1,000 suspected methaqualone tablets. (Tr. 51-55, 94, 95.)

   
   

3. Officer Serig took the bag and the suspected methaqualone tablets and returned to the City of Miami Police Department. There, he placed the contents of the bag in the Property Unit of the City of Miami Police Department, where they were received by Property Specialist Gilda Scott. (Tr. 55, 57, 58, 99.) Officer Serig filled out a police property unit receipt for the bag and its contents, and Property Custodian Gilda Scott gave him a copy of this document as a receipt for the items she received. This property receipt is numbered 50419 and reflects that the City of Miami Narcotics case number is file number 10C1179 and the impounding officer's name is Arthur Serig. (P's-1.) At the time Officer Serig gave the property to Property Specialist Scott, he requested that the contents of the bag be sent to the Metro-Dade County Crime Laboratory for analysis.

   
   

4. On April 21, 1982, the suspected methaqualone tablets were sent to the Metro-Dade County Crime Laboratory. On that date, Property Specialist Olga Lendic signed out one sealed envelope containing 1,096.3 grams of suspected methaqualone tablets to Officer Caesar Phillipe. Officer Phillipe carried the sealed envelope to the crime laboratory. After the sealed envelope was received by the crime laboratory, Crime Analyst Albert C. Christensen obtained the envelope, which was still sealed, opened the envelope, and took out 1,091.3 grams of suspected methaqualone tablets. (Tr. 120-127.) Christensen analyzed the contents of the envelope and prepared a written laboratory analysis report. (P's-3.) The tests performed by Christensen revealed that the tablets received by Officer Serig from the Respondent were methaqualone tablets, also known under their trade name as Quaaludes. (Tr. 128; P's-3.) Christensen's laboratory analysis report bears the Dade County case number 139891C, a City of Miami case number 10C1179, and references a Miami property locator number B-50419.

   
   

5. On May 7, 1982, Officer Serig and undercover Officer Noel Rojas met the Respondent in the area of the Miami Marina for the purpose of purchasing Quaaludes. The Respondent was sitting in a yellow car when they arrived. The Respondent opened the trunk of the car and produced a large bucket or pail

   containing five plastic bags of suspected methaqualone tablets. A discussion took place between the Respondent and Officer Serig regarding the sale of the tablets to Officer Rojas by the Respondent. Thereafter, the Respondent was placed under arrest by other officers and Officer Serig. Officer Serig took custody of the suspected methaqualone tablets and returned with them to the police station.

   
   

6. The suspected methaqualone tablets were turned in to the Property Unit, where they were received by Gilda Scott. Officer Serig prepared a property receipt, number 51126. This property receipt bore the City of Miami case number 10C 1179, Officer Serig's name as the impounding officer, and the Respondent's name as the suspect. Officer Serig took one tablet from each plastic bag in the pail, placed each tablet in a plastic envelope, and sealed the five plastic envelopes in a manila envelope labeled Item 2 of 2. Officer Serig requested that the property specialist send Item 2 to the crime laboratory for analysis. Item 1 on the receipt remained in the Property Unit. Scott signed the receipt, indicating that she received the pail of tablets and the sealed manila envelope containing the five tablets sealed in individual plastic envelopes.

   
   

7. On May 10, 1982, Property Specialist Olga Lendic signed out Item 2, the manila envelope described in paragraph 6 above, from the Property Unit to Officer D. Miller, who transported Item 2 to the crime laboratory. Crime Specialist Jack Genova opened the sealed manila envelope and, from the five plastic envelopes, selected one envelope, opened it, and removed the tablet. Genova subjected this tablet to laboratory analysis and prepared a written laboratory report, received as Petitioner's Exhibit 4. (Tr. 29-39.) Genova's laboratory report contains the Dade County case number 163580C, the City of Miami case number 10C1179, the City of Miami property number B-51126, the Respondent's name as defendant, and a description of the evidence as five bags with one white tablet each. The tests performed by Genova determined that the tablet analyzed was methaqualone, also known as Quaalude. (Tr. 37-39, P's-4.)

   
   

8. The undercover officers all testified that the Respondent had never prescribed any medication for them.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Board of Medical Examiners has authority to discipline its licensees pursuant to the provisions of Chapter 458, Florida Statutes. This Recommended Order is entered pursuant to the provisions of Section 120.57(1), Florida Statutes.

   
   

10. Counts I and II of the Administrative Complaint alleged that the Respondent violated Section 458.331(1)(q) and Section 893.05(1), Florida Statutes, by respectively prescribing a controlled substance other than in the course of his professional practice and by failing to prescribe controlled substances in good faith and in the course of his professional practice. Both of these statutes address not only prescribing but also dispensing of controlled substances; however, the Petitioner elected to proceed only on the basis of prescribing. It would have simple for the Petitioner to have alleged in the Administrative Complaint that the Respondent had violated Section 458.331(1)(q) Florida Statutes, by both prescribing and dispensing controlled substances other than in the practice of his profession. The matter at issue is not whether the statutes involved prohibit dispensing of controlled substances other than in the course of professional practice but whether the Respondent was on notice that he was charged with dispensing, an act quite different from prescribing controlled

    substances. Testimony of both officers was that the Respondent never prescribed any medication for them. The allegations of Counts I and II are not proven.

    
    

11. Count III of the Administrative Complaint alleges that the Respondent violated Section 893.315(1)(e), Florida Statutes, which provides in pertinent part that any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 200 grams or more of methaqualone or of any mixture containing methaqualone, as described in Section 893.03(2)(c), Florida Statutes, is guilty of a felony of the first degree, which felony shall be known as "trafficking in methaqualone."

    
    

12. The evidence adduced at hearing shows that the Respondent knowingly possessed and delivered 200 grams or more of methaqualone under such conditions and in such place that said possession was not related to his practice of medicine. This constitutes a clear violation of Section 893.135(1)(e), Florida Statutes. Count III alleges that violation of Section 893.135 (1)(e), supra, is a violation of Section 458.331(1)(h), Florida Statutes. Section 458.331(1)(h), supra, provides in pertinent part that failure to perform any statutory or legal obligation placed upon a licensed physician shall constitute grounds for which disciplinary action may be taken. Among the disciplinary actions which can be taken against the Respondent are suspension, revocation, and imposition of an administrative fine not to exceed $1,000 per violation. By violating Section 893.315(1)(e), Florida Statutes, the Respondent failed to perform a statutory or legal obligation placed upon a licensed physician. The evidence shows that the Respondent violated Section 893.135(1)(e), supra, by knowingly possessing and delivering more than 200 grams of methaqualone to undercover officers on April

20 and again on May 7, 1982. On both occasions, the Respondent violated Section

458.331 (1)(h), Florida Statutes.

RECOMMENDATION

Having found the Respondent guilty of two violations of Section 458.331(1)(h), Florida Statutes, by being in the knowing, actual possession of and delivering 200 grams or more of methaqualone under such circumstances that it was not related to his medical practice, contrary to Section 893.135(1)(e), Florida Statutes, it is recommended that the Respondent's license to practice medicine in the State of Florida be revoked and that an administrative fine of

$1,000 for each violation of the statutes be assessed against the Respondent, for a total of $2,000.

DONE and RECOMMENDED this 20th day of January, 1984, 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 20th day of January, 1984.

ENDNOTE

1/ The citing of Section 893.135(2)(e), Florida Statutes, was apparently a typographical error and is hereby corrected to reflect Section 893.135(1)(e), Florida Statutes.

COPIES FURNISHED:

Barbara K. Hobbs, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joel Hirschhorn, Esquire, and Harry Solomon, Esquire

742 North West 12th Avenue Miami, Florida 33136

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy J. Faircloth, Executive Secretary

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000264

Orders for Case No: 83-000264