STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1115

) BERTRAM MORRIS RETTNER, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 19, 1953, in Tallahassee, Florida. The issue for determination at the hearing was whether disciplinary action should be taken against Respondent's Florida license as an osteopathic physician for violation of Section 459.015(1)(b) , Florida Statutes.

APPEARANCES

For Petitioner: James H. Gillis

Staff Attorney

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Bertram Morris Rettner

998 Via Palo Alto Aptos, California 95003

INTRODUCTION

By an Administrative Complaint filed on December 29, 1982, Respondent Bertram Morris Rettner was charged with a violation of Section 459.015(1)(b), Florida Statutes (1901). In support of the allegations of the Complaint, petitioner presented the testimony of Rickie Broach, a Complaint Analyst with the Department of Professional Regulation, and petitioner's Exhibits 1 through 5 were received into evidence. Respondent testified in his own behalf.

Subsequent to the hearing, counsel for the petitioner filed proposed findings of fact and proposed conclusions of law. To the extent that petitioner's proposed findings of fact are not included in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. On or about July 3, 1962, respondent was issued Osteopathic Physician and Surgeon license No. 20A-2834 by the Board of Osteopathic Examiners in the State of California. On July 14, 1962, respondent elected to use the designation "M.D." rather than "D.O.", and thereby submitted himself to the jurisdiction of the Board of Medical Quality Assurance in the State of California.

   
   

2. On August 10, 1978, the Board of Medical Quality Assurance in the State of California revoked respondent's California license No. 20A-2834 effective September 11, 1978. By Order dated August 18, 1982, the effective date of that decision providing for revocation was changed to September 17, 1982.

   
   

3. A Complaint Analyst with the Department of Professional Regulation, State of Florida, received documentation from the Board of Medical Quality Assurance, State of California, indicating that respondent's license No. 20A- 2834 had been revoked in California. She thereupon forwarded such documents to the legal section of the Department of Professional Regulation.

   
   

4. On December 29, 1982, the Department of Professional Regulation filed an Administrative Complaint seeking to "revoke, suspend or take other disciplinary action against the Respondent as licensee and against his license as an osteopathic physician under the laws of the State of Florida." It is alleged that respondent is guilty of having a license to practice osteopathic medicine revoked, suspended or otherwise acted against by the licensing authority of another state, in violation of Section 459.015(1)(b), Florida Statutes (1981).

   
   

5. No evidence was presented in this proceeding as to whether the Department of Professional Regulation (DPR) submitted an investigative report to the probable cause panel of a regulatory board. No evidence was presented as to whether a probable cause panel of a regulatory board or the DPR found probable cause to exist. The Board of Osteopathic Medical Examiners is not named as a petitioner in the Administrative Complaint.

   
   

6. No evidence was presented in this proceeding as to whether the respondent is licensed to practice osteopathic medicine in the State of Florida. Petitioner made no attempt to introduce evidence of any character to demonstrate whether respondent is licensed by the State of Florida to practice osteopathic medicine or any other profession falling within the purview of the Department of Professional Regulation.

   
   

   CONCLUSIONS OF LAW

   
   

7. Prior to the imposition of disciplinary action against a professional license, it is fundamental that the jurisdiction of the imposing authority be established. The instant proceeding poses several problems with regard to the petitioner's authority to discipline the respondent.

   
   

8. First, while it is alleged in the Administrative Complaint that respondent is a licensed osteopathic physician having been issued license number 0001479, this factual allegation was never established at the evidentiary hearing, nor was it the subject of any prehearing stipulation, interrogatory

   response or other admission on the part of the respondent. The presentation of some evidence that a respondent falls within the jurisdiction of a regulatory board or the Department of Professional Regulation is not an unreasonable or undue burden to place upon the prosecution in disciplinary proceedings.

   
   

9. The facts and charges in this case render it imperative that respondent's status as a licensee in the State of Florida be established. The petitioner in this proceeding is the Department of Professional Regulation (DPR). The first two paragraphs of the Administrative Complaint read as follows:

   
   

   COMES NOW, the Petitioner, the Department of Professional Regulation, hereinafter referred to as "Petitioner", and files this Administrative complaint against Bertram Morris Rettner, hereinafter referred to as "Respondent", and alleges:

   
   

   1. The Petitioner seeks to revoke, suspend, or take other disciplinary action against the Respondent as licensee and against his license as an osteopathic physician under the laws of the State of Florida.

      
      

      While the DPR has various roles with respect to the investigation and prosecution of complaints against licensees of regulated professions in Florida, it has (with limited exception not applicable herein) no authority to revoke, suspend or take disciplinary action against licenses or to otherwise issue a Final Order in disciplinary cases. Only the appropriate regulatory board has such authority. Section 455.225(5), Florida Statutes. The DPR has the authority to investigate complaints and to prepare and submit its investigative report to the probable cause panel of the appropriate regulatory board. Section 455.225(1) and (2) Florida Statutes. There was no evidence in this proceeding that an investigative report was submitted to any regulatory board or that any regulatory board made any determination as to whether probable cause existed to take disciplinary action against the respondent. The DPR may only file and prosecute a Complaint when one of three instances occur--when the probable cause panel of the appropriate hoard fails to timely find probable cause within the required statutory time period and DPR subsequently finds probable cause; when the probable cause panel finds probable cause; or when the probable cause panel of the appropriate board timely finds no probable cause and probable cause is thereafter found to exist by the DPR. Section 455.255(3) , Florida Statutes.

      Here, there is nothing on the face of the Administrative Complaint or by way of facts established at the hearing to indicate that the appropriate board's probable cause panel ever considered the charges or factual allegations against the respondent. Nor does the Administrative Complaint allege or facts establish that DPR found probable cause in the absence of a proper finding by the appropriate board. Indeed, one must even surmise from the facts alleged, but not proven, in the Complaint that the appropriate board is the Board of Osteopathic Medical Examiners.

      
      

10. One of the prime disputes and issues in this case is whether or not respondent had a license to practice osteopathic medicine revoked by the licensing authority of another state, in contravention of Section 495.015(1)(b), Florida Statutes. Concomitant to that issue is the question of the severity of the penalty to be imposed in light of the fact that the California order of revocation of respondent's California license was issued by an allopathic, as

    opposed to an osteopathic, regulatory board. These issues cannot be determined absent a clear demonstration that respondent falls within the jurisdiction of the Board of Osteopathic Medical Examiners in the State of Florida. The Department of Professional Regulation, standing by itself, has no authority in this instance to issue and prosecute an Administrative Complaint which seeks to impose disciplinary action against a person not shown to be licensed by one of the regulatory boards. Its only authority against non-licensed persons lies in the realm of the issuance of new licenses and the seeking of an injunction or writ of mandamus in civil court. Section 455.227(3), Florida Statutes.

    
    

11. In conclusion, it is determined that the petitioner, who bears the burden of proof in this action, has failed to establish that respondent is licensed to practice osteopathic medicine in the State of Florida, is subject to the jurisdiction of either the DPR or the Board of Osteopathic Medical Examiners or is otherwise subject to the provisions of Chapters 455 and 459 of the Florida Statutes. Absent such a jurisdictional showing, neither the Department of Professional Regulation nor the Board of Osteopathic Medical Examiners, if indeed it is the appropriate board, has authority to impose disciplinary action against the respondent.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Administrative Complaint against the respondent dated December 29, 1982, be DISMISSED.

Respectfully submitted and entered this 31st day of August, 1983.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Bertram Morris Rettner 998 Via Palo Alto Aptos, California 95003

Ms. Dorothy Faircloth Executive Director Board of Osteopathic

Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001115

Orders for Case No: 83-001115