STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD STEPHEN FLATT, M.D. )

)

Petitioner, )

)

v. ) CASE NO. 84-0752

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on July 11, 1984 at Sarasota, Florida.

APPEARANCES

For Petitioner: George L. Waas, Esquire

1114 East Park Avenue Tallahassee, Florida 32301

Stanley Hendrickson, Esquire

2 North Tuttle Avenue Sarasota, Florida 33577

For Respondent: Susan Tully, Esquire

Department of Legal Affairs The Capitol, Room LL04 Tallahassee, Florida 32301

By Petition for Formal Hearing, dated February 14, 1984, Richard Stephen Flatt, Petitioner, contests the denial by the Board of Medical Examiners (Board) of his Petition for Reinstatement. Since Petitioner was not afforded an opportunity to present evidence before the Board before ruling was made to deny his Petition for Reinstatement, the action by the Board did not constitute final agency action in accordance with Chapter 120, Florida Statutes. Upon appeal from this order of the Board, the Court dismissed the appeal and remanded the case for the Board to provide Dr. Flatt a hearing in compliance with Section 120.57(1), Florida Statutes.

At the hearing Respondent initially contended that evidence in these proceedings be limited to the time the Petition for Reinstatement was considered by the Board of June 5, 1983. However, this is not an appeal from the Board's

ruling. This tribunal does not have jurisdiction to review the action of the Board. Instead, this is a de novo proceeding at which Petitioner is entitled to present evidence relevant to his qualifications for reinstatement. The sole issue in these proceedings is whether Petitioner is qualified for reinstatement and to have his license to practice medicine in Florida restored.

Proposed findings submitted by the parties, to the extent they are incorporated herein are adopted; otherwise, they are rejected or not supported by the evidence, immaterial or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. Petitioner is licensed by the Board of Medical Examiners as a medical doctor in the State of Florida.

   
   

2. By Final Order rendered June 18, 1981 and filed June 24, 1981, the Board of Medical Examiners revoked Petitioner's license but stayed the revocation and suspended his license for three years; however, he was permitted to petition for reinstatement one year or more from the date of that order.

   
   

3. On July 8, 1983, Petitioner petitioned the Board of Medical Examiners for reinstatement. By order dated September 1, 1983, the Board denied the petition. The instant hearing was then requested to allow Petitioner opportunity to present evidence showing his qualification for reinstatement and to rebut evidence to the contrary.

4. The order of June 18, 1981, provided in part: In order to obtain reinstatement,

   (Petitioner) shall demonstrate that he

   can practice medicine with reasonable skill and safety to his patients, and present a favorable psychiatric evaluation from a Board appointed psychiatrist.

   Reinstatement shall be on a probationary basis for a period of five (5) years subject to the following terms and conditions: semiannual appearance before the board, obtain fifty (50) hours of AMA approval, category I, continuing Medical Education annually.

   
   

5. Petition presented a favorable psychiatric evaluation from a Board appointed psychiatrist and evidence showing a completion of 62 hours of continuing medical evaluation in 1982 and 56 hours in 1983.

   
   

6. Although Petitioner's license to practice medicine was suspended on June 18, 1981, he continued to practice until December 1, 1981, pending his appeal from the order of suspension.

   
   

7. As a result of the publicity generated by the charges which resulted in the suspension of his license, Petitioner and his family have suffered considerable humiliation. Suspension of his license barred Petitioner from his well established practice of dermatology and resulted in financial hardship and a step down in life style. In short, Petitioner has been punished for his infractions of the Medical Practices Act.

8. No issue was raised in the Administrative Complaint that led to the suspension of Petitioner's license, or since, that Petitioner is other than a technically capable dermatologist who is adequately trained and experienced to practice dermatology with reasonable skill and safety to his patients. The issue in the initial proceedings that led to the suspension of Petitioner's license was his prescribing of Quaaludes to one female for reasons not medically indicated or justified. Accordingly the determining factor in whether or not Petitioner's license should be reinstated is his potential for again prescribing controlled substances when not medically indicated.

   
   

9. Petitioner has been licensed since 1950 and is now 57 years old. As a result of his peccadillos he has suffered humiliation and financial disaster

   
   

10. Petitioner presented one expert witness who opined that Petitioner can practice medicine with reasonable skills and safety to his patients; and Petitioner testified that he would never again let himself become involved in a situation similar to that which led to the original charges, or again prescribe controlled substances when not medically justified. No evidence was submitted by Respondent to rebut this testimony.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Petitioner has the burden to prove, by a preponderance of the evidence, that he is qualified to have his license reinstated. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 ,(Fla. 1st DCA 1977).

    
    

13. The Order, by whose terms the reinstatement of Petitioner's license depends, cannot be denominated a paragon of clarity; yet both Petitioner and the Board are bound by the terms thereof. Dissecting this order piecemeal we first discover the license is revoked, but the revocation stayed and the license suspended for three years. No conditions on this stay are imposed, and none can subsequently be invented. Having only a three year suspension without condition the license should be restored at the expiration of the three year term. Since the license was suspended for three years commencing June 18, 1981, it can be argued this three year period ended June 17, 1984. However, Petitioner acknowledged that he did not suspend his practice until December 1, 1981 after his appeal was denied.

    
    

14. That the Board intended the three year suspension to be the maximum it was imposing is evidenced by the language in the order requiring Petitioner to wait one year before petitioning the Board for reinstatement; and, in order to obtain reinstatement, Petitioner shall demonstrate that he can practice medicine with reasonable skill and safety to his patients, and present a favorable psychiatric evaluation from a Board appointed psychiatrist. The letter of July 5, 1983, from the psychiatrist presumably meets this requirement as no evidence to the contrary was presented. The evidence presented by Petitioner that he can practice medicine with reasonable skill and safety to his patients was not rebutted and was not so improbable as to be unworthy of belief.

15. Although the three year suspension is without condition, if reinstatement is sought before the expiration of the suspension the order provides the reinstatement shall be on a probationary basis for 5 years subject to semiannual appearances before the Board and 50 hours of continuing education annually. Petitioner has completed the requisite continuing education for 1982 and 1983, and has appeared before the Board on at least one occasion.

    
    

16. In construing the order of June 18, 1981, the same principles are to be used as are used in construing laws imposing taxes, sanctions, and some contracts; viz. that the order will be strictly construed and all ambiguities therein will be resolved in favor of the licensee and against the Board. The Board prepared the order and is bound by the terms thereof. Since no conditions were placed on the 3 year suspension, Petitioner is entitled to have his license restored at the expiration of the period of suspension. Although this suspension was ordered June 18, 1981, due to appeals from that order, the suspension actually started December 1, 1981, and the 3 years will expire November 30, 1984. At that time, and pursuant to a strict construction of the order, Petitioner is entitled to have his license restored to good standing without probation.

    
    

17. If Petitioner's license is reinstated before November 30, 1984, the expiration of the fixed suspension period, then the order provides the reinstatement is conditioned on a probationary period of 5 years with the requirement that Petitioner complete 50 hours of continuing education annually and report to the Board semiannually.

    
    

18. From the foregoing it is concluded that Petitioner has shown, by a preponderance of the evidence, that he can practice medicine with reasonable skill and safety to his patients; has submitted a favorable psychiatric evaluation from a Board appointed psychiatrist; has completed more than 50 hours of continuing education during each of the years 1982 and 1983; and that he has thereby satisfied the terms and conditions of the order dated June 18, 1981 and is entitled to have his license reinstated subject to the 5 year probationary period as prescribed in that order. It is

RECOMMENDED that a Final Order be entered reinstating the license of Richard Stephen Flatt as a medical doctor authorized to practice medicine in Florida subject to the terms and conditions of the 5 year probational period.

ENTERED this 27th day of July, 1984.

K. N. AYERS 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 27th day of July, 1984.

COPIES FURNISHED:

George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Stanley Hendrickson, Esquire

2 North Tuttle Avenue Sarasota, Florida 33577

Susan Tully, Esquire Department of Legal Affairs The Capitol, Room LL04 Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-000752

Orders for Case No: 84-000752