STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3476

)

MAURICE L. KAYE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was presented upon an Administrative Complaint filed by the Petitioner, Department of Professional Regulation against the Respondent Maurice

1. Kaye, D.O. containing five (5) counts and sixteen (16) paragraphs. All but one of the counts are grounded in the Petitioner's allegation that advertisements placed by the Respondent were fraudulent or misrepresented the actual facts. The fifth count was grounded in the Respondent's alleged inability to properly assess five patients after they had been treated for one month.

   
   

   The formal hearing in this cause was held on May 30, 1984 by Stephen F. Dean, the assigned Hearing Officer in St. Petersburg, Florida.

   
   

   APPEARANCES

   
   

   FOR PETITIONER: James H. Gillis, Esquire

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   FOR RESPONDENT: Maurice L. Kaye, D.O.

   Medical Health Center 735-49th Street North

   St. Petersburg, Florida 33710 ISSUES

   Prior to the final hearing two (2) orders had been entered based upon the Respondent's failure to respond to request for admissions. As a result thereof, many of the facts upon which the Petitioner's case is based were deemed admitted. However, notwithstanding these admissions, it is clear that the Petitioner caused to be published an advertisement in the St. Petersburg Times which misrepresented actual fact and was misleading to the public.

   
   

   The Petitioner proposed findings of fact. The submission of the Respondent was irrelevant and presented no proposed findings. The proposed findings of the

   Petitioner are the basis for the following findings of fact although they are slightly reorganized.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent's name is Maurice L. Kaye.

      
      

   2. The Respondent's current address is 735-49th Street North, St. Petersburg, Florida 33710.

      
      

   3. The Respondent is now a licensed osteopathic physician in the State of Florida.

      
      

   4. The Respondent holds osteopathic license No. OS 0000949.

      
      

   5. The Respondent was a licensed osteopathic physician in the State of Florida at all times alleged in the Administrative Complaint filed in this cause on August 9, 1983.

      
      

   6. The Respondent served as the "doctor" at the Florida Medical Weight Loss Clinic from approximately January 15, 1983 until February 10, 1983.

      
      

   7. The Respondent was employed by Lydia Stein of Florida Medical Weight Loss Clinic.

      
      

   8. The Florida Medical Weight Loss Clinic placed or caused to be placed an advertisement in the Tampa Tribune dated January 24, 1983. This advertisement failed to conspicuously identify the Respondent by name and failed to conspicuously identify the Respondent as the physician providing medical supervision at the Florida Medical Weight Loss Clinics.

      
      

   9. The Respondent was vicariously responsible for the dissemination of the advertisement described in the paragraph above.

      
      

   10. The Respondent caused an advertisement to be placed in the St. Petersburg Times which offered a nonsurgical treatment for cataracts. This advertisement was published on January 10, 1983. This advertisement read as follows:

       
       

       CATARACT TREATMENT NON-SURGICAL

       FREE CONSULTATION

       By Dr. Alex Dewart MEDICAL HEALTH CENTER

       735-49th Street North 321-3341

       
       

   11. The advertisement described above in the St. Petersburg Times failed to conspicuously identify the Respondent by name, failed to identify the Respondent as the responsible physician, and failed to identify the Respondent as an osteopathic physician. The Respondent had no professional or contractual relationship with Dr. Alex Dewart or Alex Duarte, neither of whom were ever employees of Medical Health Center or Respondent at 735-49th Street North, St. Petersburg, Florida.

   12. Dr. Alex Duarte is a recognized specialist in non- surgical treatment of cataracts.

       
       

   13. Evidence was presented concerning the efficacy of non- surgical treatment for cataracts. It is concluded that such treatment may be beneficial and that the extent to which such non-surgical treatment is beneficial is a matter about which reasonable men differ.

       
       

   14. No believable evidence was presented that the Respondent was unable to assess patients.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes (1983), and Section 455.225(4), Florida Statutes (1983). Section 459.015(1)(d) Florida Statutes, (1981) empowers the board of osteopathic medical examiners to discipline the Respondent for false, deceptive, or misleading advertisement. Any advertisement or advertising shall be deemed by the Board to be false, deceptive, or misleading if it fails to conspicuously identify the osteopathic physician by name in the advertisement or fails to conspicuously identify the osteopathic physician referred to in the advertisement as an osteopathic physician. See Rule 21R-14.01(2), Florida Administrative Code. The advertisement which the respondent's employer placed in the Tampa Tribune on January 24, 1983 failed to comply with the standards stated above. The Respondent is deemed to be liable for the acts of his employer by the Board.

       
       

   16. The advertisement placed by the Respondent in the St. Petersburg Times is a gross and intentional misrepresentation because it not only fails to identify the Respondent as the responsible osteopathic physician, but states that there will be a free consultation by Dr. Alex Dewart. There was at no time relevant to these proceedings a Dr. Alex Dewart associated with the Respondent. Respondent was aware of these facts when the advertisement was published. The Respondent violated Rule 21R-14.01, Florida Administrative Code and Section 459.015(1)(d), Florida Statutes by placing both advertisements.

RECOMMENDATION

For failing to identify himself as the responsible osteopathic physician in the Tampa Tribune advertisement contrary to Rule 21R-14.01(2) , Florida Administrative Code and Section 459.015(1)(d), Florida Statutes, it is recommended that the Respondent be fined by the Board the amount of Two Thousand Dollars ($2,000). For having placed the advertisement in the St. Petersburg Times falsely representing that Dr. Alex Dewart was associated with the Medical Health Center contrary to Section 459.015(1)(d) , Florida Statutes, it is recommended that Dr. Kaye's license be suspended for one (1) year and be reinstated upon payment for the fine levied above, and that thereafter Dr. Kaye be placed upon a two (2) year probation period pursuant to Section 459.015(2) , Florida Statutes.

DONE and ORDERED this 15th day of January, 1985 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 15th day of January, 1985.

COPIES FURNISHED:

James H. Gillis, Esq. Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Maurice L. Kaye, D.O. 735-49th Street, North

St. Petersburg, Florida 33710

Ms. Dorothy Faircloth Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH CASE NO. 83-3476

DPR CASE NO'S 0032036

MAURICE L. KAYE 0032459

LICENSE NO. 0000959

Respondent.

/

FINAL ORDER OF THE

BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

Respondent, Maurice L. Kaye holds a license as a Osteopathic Physician License No. 0000959. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A recommended order has been forwarded to the Board pursuant to Section 120.57(1), F.S., it is attached to and made a part of this Order.

The Board panel of the Osteopathic Medical Examiners met on March 9, 1985, in Tampa, Florida, to take final agency action. The Petitioner was represented by William M. Furlow, Esquire. The Respondent was represented by James Brumby. The board has reviewed the entire record in the case.

The Board adopts the findings of fact and conclusions of law of the recommended order, but rejects the recommended penalty. The Board increases the penalty to revocation based upon the prior orders as well as current cases substantiate the fact that Respondent is dangerous to the health and safety of persons in the State of Florida.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED this 25th day of March, 1985.

Board of Osteopathic Medical Examiners

James H. Taylor Vice Chairman

Docket for Case No: 83-003476

Orders for Case No: 83-003476