vs. ) CASE NO. 84-0505
ROBERT LIVINGSTON, M.D. )
Respondent. )
Pursuant to notice, a formal evidentiary hearing was held in this case before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 30, 1984, in Tallahassee, Florida. At hearing, the parties were represented by counsel, as follows:
For Petitioner: Barbara K. Hobbs, Esquire
Neither party called any witnesses to testify at the hearing. The Petitioner offered two composite exhibits, both of which were received in evidence. The Respondent offered one exhibit, which was received in evidence.
The principal issue in this case is whether the Respondent, Dr. Livingston, is in violation of Section 458.331(1)(b), Florida Statutes, by reason of certain events which occurred in New Jersey. The Respondent has also raised several collateral issues, including issues concerning the validity of and the interpretation to be given to the cited statutory provision.
Based cn the exhibits received in evidence at the hearing in this case, I make the following findings of fact.
The Respondent, Robert Michael Livingston, M.D., is a licensed medical physician, having been issued license number NE0009825 by the Florida Board of Medical Examiners. His last known address is 33 Southeast Third Street, Boca Raton, Florida 33432. Dr. Livingston has been licensed to practice medicine in
both the State of Florida and the State of New Jersey for a number of years.
The Dr. Livingston who is the Respondent in this case is the same Dr. Livingston who holds license number 18863 in the State of New Jersey and who was the subject of the administrative proceedings in the State of New Jersey which were resolved by a Final Order by Consent dated January 12, 1983.
By an Administrative Complaint dated May 18, 1981, and an Amended Administrative Complaint dated September 17, 1981, the Attorney General of the State of New Jersey sought the suspension or revocation of Dr. Livingston's license to practice medicine in the State of New Jersey. The grounds alleged in the Amended Administrative Complaint included conduct which was asserted to constitute (a) the employment of unlicensed persons to perform work which may legally be done only by persons licensed to practice medicine and surgery; (b) gross malpractice and gross neglect in the practice of medicine; (c) professional incompetency; (d) lack of capability to discharge the functions of a medical licensee in a manner consistent with the health, safety and welfare of the public; and (e) habitual use of intoxicants. The allegations of the New Jersey Administrative Complaint and Amended Administrative Complaint were never proven in any proceeding in New Jersey.
All of the allegations of the New Jersey Administrative Complaint were resolved by the entry of a Final Order by Consent dated January 12, 1983. The prefatory language of the Final Order by Consent contains the following relevant language:
Subsequent to the filing of the complaint the parties have concluded that this dispute can be amicably resolved by means of this Final Order by Consent. In entering into this Final Order Dr. Livingston denies any malpractice, gross or otherwise, and this resolution of the dispute is therefore not to be construed as an admission by
Dr. Livingston of any of the allega- tions contained in the complaint.
The parties hereto acknowledge that the Board of Medical Examiners does not contend that Dr. Livingston is presently dependent upon controlled dangerous substances. In entering into this Final Order the Board of Medical Examiners relies upon
Dr. Livingston's representation that he is not now practicing medicine and surgery in New Jersey, but is so practicing in the State of Florida.
The dispositional language of the Final Order by Consent reads as follows:
IT IS ORDERED AND AGREED, therefore,
on this 12th day of January, 1983, that:
Robert M. Livingston will not practice medicine and surgery in the State of New Jersey for a two-year
period, that period having commenced on May 22, 1981. If at any time after the expiration of this two- year period he shall seek to practice medicine and surgery in New Jersey, he shall either personally appear before the Board of Medical Examiners or submit proof of his compliance with paragraph 2 of this Final Order. In addition, the Board of medical Examiners may in its discretion reguire Dr. Livingston to submit to a general psychiatric evaluation performed by a Board-certified psy- chiatrist designated by the Board of Medical Examiners to determine whether there exists any medically unjustified dependence upon con- trolled dangerous substances.
Bobert M. Livingston will pay
$2,500.00 as a sharing of the costs of the Board inquiry into the matters resolved by this Final Order.
Robert Il. Livingston will pay the expert fee billed to
Dr. Livingston by Dr. Leslie Iffy
for Dr. Iffy's testimony during depo- sitions, and Dr. Livingston will be responsible for paying the cost of all transcripts of the depositions
of Dr. Iffy, Kathleen M. Brancaccio and Nicholas Brancaccio.
None of the provisions of this Final Order by Consent shall be deemed a disciplinary sanction or
penalty under the Medical Practice Act.
This Final Order by Consent consitutes resolution of all matters arising from the complaint as it pertains to Robert A. Livingston, and the complaint as it pertains to him is dismissed with prejudice. (Emphasis added.)
Thereafter, effective July 1, 1953, Dr. Livingston's license to practice medicine in the State of New Jersey was renewed for a two-year period ending on June 30, 1955.
ANALYSIS OF TUE ISSUES
Issues Regarding Findings of Fact
The Respondent has asserted that Petitioner's Composite Exhibit 2 constitutes hearsay evidence which would not be admis- sible over objection in a civil action and that, by operation of Section 120.55(1)(a), Florida Statutes, the exhibit is insufficient to support a finding of fact. Contrary to the assertions of the Respondent, it should be noted that Petitioner's Composite Exhibit 2 comes within the "public records exception to the hearsay rule [see
90.803(8), Fla. Statutes] and is self-authenticating within the meaning of Section 90.902, Florida Statutes. Accordingly, the exhibit would be admissible over objection in a civil action and is, therefore, a sufficient basis for making findings of fact in this case.
In making the foregoing findings of fact, I have, with the exceptions noted hereinafter, incorporated the text or substance of the vast majority of the findings of fact proposed by the parties. My reasons for not making certain findings proposed by the respondent are as follows. The last sentence of Respondent's proposed finding number 3 is not supported by competent substantial evidence. The penultimate sentence of Repondent's proposed finding number 4 is more in the nature of argument or a proposed conclusion of law than a proposed finding of fact. My reason for not making Petitioner's proposed finding of fact numbered 4 is that it is more in the nature of a conclusion of law than a proposed finding of fact--it is a proposed interpretation of the legal effect of the Final Order by Consent rather than a summary of the text of that order.
The Delegation of Authority Issue
At the hearing in this case, the Respondent also argued that Section 458.331(1)(b), Florida Statutes, constitutes an improper delegation of authority to officials of other states because by operation of the statute officials in other states are able to determine who shall be subject to discipline in the State of Florida. This argument has already been resolved contrary to the Respondent's contentions. See Bryan v. State Board of Medical Examiners of Florida, 381 So. 2d 1122 (Fla. 1st DCA 1979), affirmed, 398 So. 2d 1354 (Fla. 1981).
The Sufficiency of the Statement of the Charges Against the Respondent
The Respondent also asserts that a finding of guilt in this case would constitute a denial of due process because he was charged in the Administrative Complaint with having his license "acted upon" and was not charged, in the language of the statute, with having his license "acted against." There are, of course, cases in which a failure to charge in the statutory language could deprive a Respondent of his right to know the charges against him and have adequate opportunity to prepare his defense against them. But the Respondent is not entitled to a perfect statement of the charges against him. Rather, the standard which west be met by the language of the Administrative Complaint is that the
. . . . grounds for revoking a license to practice medicine must be alleged with reasonable certainty and show
the nature and cause of the accusa- tion and he must be given reasonable opportunity to defend against attempted proof of such charges. (Emphasis added.)
State ex rel. Sbordy v. Rowlett, 190 So. 59 (Fla. 1939), at 62. Despite the failure of the Administrative Complaint in this case to track the exact language of the statute, the Respondent had full knowledge of the factual basis for the charge against him and was also fully aware of the legal basis for the charge.
Therefore, he knew with "reasonable certainty" what the Petitioner would attempt to prove, and he had a "reasonable opportunity" to defend against the charge.
The Principal Issue in the Case
Turning at last to the heart of the matter, the principal issue which must be decided in this case is whether the actions of the Attorney General of the State of New Jersey or the Hoard of Medical Examiners of the State of New Jersey described in the findings of fact constitute, in the language of Section 455.331(1)(b), Florida Statutes:
Having a license to practice medicine revoked, suspended, or otherwise acted against, including the denial
of licensure, by the licensing authority of another state, territory, or country.
For the reasons explained below, I conclude that they do not.
Part of the resolution of this issue turns on the interpretation to be given to the terms "suspended," "acted against," and "licensing authority," as used in Section 458.331(1)(b), Florida Statutes. None of these terms are defined in the statute. Accordingly, pursuant to well-established rules of statutory construction, these terms must be given their plain and ordinary meaning. See cases collected at Vol. 10-B, Florida Digest, Statutes, 188, of which the following is a modest sample. Crown Diversified Industries, Inc. v. Watt, 415 So.2d 803 (Fla. 1st DCA 1982); St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla. 1982); J. C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979 (Fla. 3d DCA 1981); Gasson v. Gay, 49 So.2d 525 (Fla. 1951); Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950).
The term "licensing authority," as used in Section 458.331(1)(b), Florida Statutes, means the governmental entity in a foreign jurisdiction which possesses the power and authority to take final action to grant a license or to deny, revoke, or suspend a license, or to otherwise impose discipline on a licensee. In this case, the relevant "licensing authority" is the Board of Medical Examiners of the State of New Jersey. The Attorney General of the State of New Jersey is not a "licensing authority" within the meaning of Section 458.331(1)(b), Florida Statutes, because, although the Attorney General prosecutes complaints against licensees, nothing in this record shows that the Attorney General has the power and authority to grant, revoke, or suspend a license, or to impose any discipline on a licensee. Therefore, even if the actions of the Attorney General of the State of New Jersey described in the findings of fact were to be construed as action against a license, such action would not establish a violation of Section 458.331(b), Florida Statutes, because it would not be action by a "licensing authority." Accordingly, in order to establish a violation of the cited statute in this case, the Department must show that the Board of Medical Examiners of the State of New Jersey suspended or acted against the license of Dr. Livingston. 2/
The plain meaning of the term "suspend" is "to render temporarily void" or "to punish by temporary exclusion." See The Random House Dictionary. And the plain and ordinary meaning of "against," in the context in which it appears in the subject statute, is "in opposition or hostility to." Id. A careful review of the Final Order by Consent reveals that the action taken by the Board of Medical Examiners of the State of New Jersey did not suspend Dr. Livingston's license and did not constitute any action against Dr. Livingston's license. The Final Order by Consent does not purport to suspend Dr. Livingston's license and does not purport to impose any other form of discipline
against him. This is evidenced by the penultimate paragraph of the order, which specifically states: "None of the provisions of this Final Order by Consent shall be deemed a disciplinary sanction or penalty under the Medical Practice Act." (Emphasis added.) Further, there is nothing in the Final Order by Consent which purports to order Dr. Livingston to do anything or to refrain from doing anything. Quite to the contrary, the dispositive action of the New Jersey Board in the final paragraph of the Final Order by Consent was to dismiss, with prejudice, the complaint against Dr. Livingston.
The Department argues that the language of paragraph number 1 of the Final Order by Consent constitutes a suspension of, or action against, Dr. Livingston's New Jersey license and that paragraphs number 2 and 3 of that order also constitute action against Dr. Livingston's New Jersey license. Paragraph number 1 of the Final Order by Consent does state that Dr. Livingston "will not" practice medicine in the State of New Jersey for a specified period and paragraphs number 2 and 3 of that order do state that Dr. Livingston "will pay" certain expenses related to the case. But those paragraphs cannot be interpreted as having the legal effect urged by the Department, because to do so would be to belie the express language of paragraph number 4 of the same document (which states that nothing in the order constitutes "a disciplinary sanction or penalty") and to ignore the operative language of the order, which is to dismiss the complaint with prejudice. It would be a total contradiction to say, on the one hand, that the New Jersey Board dismissed the complaint against Dr. Livingston and did not impose any disciplinary sanction or penalty and to then conclude that the New Jersey Board had suspended Dr. Livingston's license and had otherwise acted against his license.
Furthermore, nothing in paragraphs number 1, 2, or 3 of the Final Order by Consent prohibits Dr. Livingston from doing anything or orders Dr. Livingston to do anything. Those paragraphs simply state that Dr. Livingston will not do this and will do that. The clear import of the statements in these three paragraphs is that they recite what Mr. Livingston has agreed to do and not to do. It is noteworthy that these three paragraphs are immediately preceeded by a statement reading "IT IS ORDERED AND AGREED." Inasmuch as the three subject paragraphs do not order Dr. Livingston to do or refrain from doing anything, they can only be construed as manifestations of what Dr. Livingston agreed to do and to refrain from doing. Thus, these paragraphs constitute action taken by Dr. Livingston, not action taken by the Board. Finally, this interpretation of paragraphs number 1, 2, and 3 is compelled by the fact that it would be incongruous to conclude that the New Jersey Board was, in a single act, both penalizing Dr. Livingston (which the order specifically disavows) and dismissing all charges against him. Reduced to the vernacular, the New Jersey Board made a deal with Dr. Livingston that if he would agree to do this and not do that, they would not take any action against him, and the Final Order by Consent is the implementation of that deal. And in this regard it is important to take cognizance of the fact that the Final Order by Consent was not a consent to the entry of an order against Dr. Livingston. Quite to the contrary, it was a consent to a dismissal of all charges.
The Department also argues by analogy that the New Jersey consent order in this case is as sufficient a basis for finding a violation of Section 458.331(1)(b) as was the consent order entered by the Composite State Board of Medical Examiners of the State of Georgia, which was relied on in Department of Professional Regulation, Board of Medical Examiners v. Ralph C. Lee, M.D., 4 FALR 2388A (1982) The analogy fails because of the following notable differences. In the Lee case, Dr. Lee's consent in the Georgia case included an admission of some or all of the charges brought against him. Here, Dr.
Livingston's consent in the New Jersey case incorporates an express denial of the charges against him. In the Lee case, the Georgia Hoard revoked Dr. Lee's license and then put Dr. Lee on probation. Here the New Jersey Hoard dismissed with prejudice all charges against Dr. Livingston. In the Lee case, a clear violation of Section 485.331 (1)(b) , Florida Statutes, was established. Here, there was no such violation.
A Collateral Issue Which Need Not Be Decided Here
A final issue which need not be decided here, but which nevertheless warrants brief attention, is the Respondent's contention that his due process rights will be violated unless Section 458.331(1)(b), Florida Statutes, is construed quite narrowly. He argues that Section 458.311(1)(b) should be construed
. . . . as requiring the allegation, substan- tiated by competent substantial evidence, that
a licensee has had his license revoked, suspended or otherwise acted against by the licensing authority of another state, territory, or country, for conduct which would constitute a violation of 458.331, Florida Statutes, if
that conduct were committed in Florida.
Petitioner replies to the foregoing by arguing that the Respondent's due process arguments involve constitutional issues which are beyond the scope of the Hearing Officer's authority.
In view of the foregoing conclusions about the effect of the Final Order by Consent, it is not necessary in this case to embark upon a lengthy analysis of the extent to which the proper interpretation of Section 358.331(1)(b) , Florida Statutes, may be colored by constitutional considerations. 4/ Nevertheless, because occasion to address this issue may arise at some later stage in these proceedings, I commend to the parties' attention the following comments from Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737 v. Escambia County School Board, 3 FALR 2122A (1981) at 2125A--2126A, affirmed, 426 So.2d 1017 (Fla. 1st DCA 1983):
Prior to embarking upon a discussion of the constitutional ramifications of the issues at hand we hasten to acknowledge that we are
well aware of the limitations upon an adminis- trative agency's role in matters which involve the application or interpretation of our State Constitution. As noted in Barr v. Watts, 70 So.2d 347 (Fla. 1953) , and State ex rel.
Atlantic Coast Line Railroad Co. v. State Board of Equalizers, 94 So. 681 (ala. 1922) the "right to declare an act unconstitutional cannot be exercised by the officers of
the executive department under the guise of the observance of their oath of office to support the Constitution." But the fact that we are without authority to rule upon the constitutionality of statutes does not mean that we must ignore the Constitution. To the contrary, where the meaning of a statute is
colored by provisions in the Constitution our hope of reaching the correct understanding of that meaning lies in part in a consideration of those constitutional consequences.
* * * *
And while we may not, in the course of ourefforts to construe applicable statutory provisions, declare a statute to be unconstitutional, neither are we required to fumble around in some pretended ignorance of reality. if we are to act responsibly, we must act in full contemplation of the inescapable consequences of what the courts have already said about similar statutes . . . And even though we lack the power of a court with regard to the ruling upon the validity of a statute, we owe to the Legislature certainly no less duty than is owed by the courts to respect the enactments of that body. In this regard it seems especially appropriate for us to follow the same rules as are followed by the courts in their construction of statutory pro visions which skate near the thin ice of constitutional invalidity particularly in light of the fact that in the event of judicial review of this order notions of stare decisis make it most likely that any reviewing court would also resort to the same time-tested rules of construction. (Word in square brackets added.) See also: Florida Education Association/United v. Public Employees Relations Commission, 346 So.2d 551 (Fla. 1st DCA 1977), at 553.
In Brief Summary
In sum: The Final Order by Consent issued by the Hoard of Medical Examiners of the State of New Jersey on January 12, 1983, does not constitute a suspension of Dr. Livingston's license to practice medicine in that state, nor does it constitute action against such license. There is no competent substantial evidence in the record of any other revocation, suspension, or action against Dr. Livingston's license to practice medicine in New Jersey. Therefore, the violation charged in the Administrative Complaint in this case has not been proved and the Administrative Complaint should be dismissed.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and analysis of the issues, I hereby make the following conclusions of law.
The Attorney General of the State of New Jersey is not a licensing authority" within the meaning of Section 458.331 (1)(b), Florida Statutes.
The Attorney General of the State of New Jersey did not, by filing an administrative complaint and amended administrative complaint against Dr. Livingston, revoke, suspend, or otherwise act against Dr. Livingston's license to practice medicine within the meaning of Section 458.331(1)(b), Florida Statutes.
The Board of Medical Examiners of the State of New Jersey is a "licensing authority" within the meaning of Section 458.331(1)(b) , Florida Statutes.
The Board of Medical Examiners of the State of New Jersey did not, by issuing the Final Order by Consent dated January 12, 1983, or by any other action, revoke, suspend, or otherwise act against Dr. Livingston's license to practice medicine within the meaning of Section 458.331(1)(b) , Florida Statutes.
Based upon all of the foregoing, I RECOMMEND that the Florida Board of Medical Examiners enter a Final Order in this case dismissing in its entirety the Administrative Complaint against Dr. Livingston.
DONE and ORDERED this 28th day of June, 1984, at Tallahassee, Florida.
MICHASEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1984.
1/ Similarly, there is no competent substantial evidence in the record in this case to prove any of the acts of misconduct alleged in the New Jersey Administrative Complaint and Amended Administrative Complaint.
2/ There is no contention that Dr. Livingston's license was revoked by the New Jersey authorities.
3/ In this respect this case differs markedly from the case of Department of Professional Regulation, Board of Medical Examiners Ralph C. Lee, M.D., 4 FALR 2388A (1982), discussed hereinafter. Dr.Lee consented to the entry of a consent order revoking his license.
4/ Nor is it necessary to discuss here the extent to which the interpretation of Section 458.331(1)(b) urged by the Respondent may be required by Bryan v.
State Board of Medical Examiners of Fla., 381 So. 2d 1122 (Fla. 1st DCA 1979), affirmed, 398 So. 2d 1354 (Fla. 1981).
Barbara K. Hobbs, Esquire
130 N. Monroe Street Tallahassee, FL 32301
Paul Watson Lambert, Esquire 1114 E. Park Avenue Tallahassee, FL 32301
130 N. Monroe Street Tallahassee, FL 32301
================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS
vs. DOAH CASE NO. 84-0505
DPR CASE NO. 38964
ROBERT LIVINGSTON, M.D. LICENSE NO. 9825
Respondent.
This cause came before the Board of Medical Examiners (Board) pursuant to Section 120.57(1)(b)(9) , Florida Statutes on August 5, 1984, in Tampa, Florida for the purpose of considering the hearing officer's recommended order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Cecilia Bradley, Esquire; Respondent, Robert Livingston, M.D. was represented by Paul W. Lambert, Esquire. Upon review of the recommended order the exceptions filed thereto, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions:
Based upon a review of the complete record in this cause, and its foregoing findings of fact and conclusions of law, the Board determines that the penalty recommended by the hearing officer be rejected; WHEREFORE, it is hereby
$1,000.00 to the Board within 30 days from the effective date of this Order. Further Respondent shall be on probation for a period of three years, during which time he shall: 1) appear semi-annually before the Board and 2) submit to random urine samples to detect any chemical or alcohol dependency. Upon finding of probable cause that Respondent has violated any or all of the conditions of probation despondent's license shall be suspended with a hearing on the matter as necessitated by Chapter 120, F.S. This Order takes effect upon filing.
DONE AND ORDERED this 11th day of September, 1984.
Richard J. Feinstein, M.D. Chairman
cc: All Counsel of Record Robert Livingston, M.D.
