STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-3126

)

LAWRENCE E. URBAN, 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 September 15, 1987, in Clearwater, Florida. The issue for determination in this proceeding is whether respondent's license as an osteopathic physician is subject to disciplinary action for the reasons set forth in the Administrative Complaint filed on June 30, 1987.

APPEARANCES

For Petitioner: Leslie Brookmeyer, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Lawrence E. Urban, D.O.

Post Office Box 4672 Clearwater, Florida 33518

INTRODUCTION

By an Administrative Complaint filed on June 30, 1987, petitioner seeks to take disciplinary action against the respondent on the grounds that he violated Section 459.O15(1)(cc), Florida Statutes (1986 Supplement). More specifically, it is alleged that respondent violated a lawful order of the Board of Osteopathic Medical Examiners by continuing to practice osteopathic medicine after his license had been suspended.

In support of the charges against respondent, petitioner presented the testimony of respondent and, by way of deposition, the testimony of Barbara Kemp, a staff assistant and custodian of records for the Board of Osteopathic Medical Examiners. Petitioner's Exhibits 1 and 2 were received into evidence. Respondent testified in his own behalf, but presented no other witnesses or documentary evidence.

Subsequent to the hearing, counsel for the petitioner submitted proposed findings of fact and conclusions of law. The petitioner's proposed factual findings are accepted except as noted in the Appendix hereto. The respondent submitted no post- hearing proposals.

FINDINGS OF FACT

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

1. Respondent Lawrence E. Urban has been an osteopathic physician for thirty years, and holds license number 0S 0001232 in the State of Florida.

   
   

2. After an administrative hearing in another disciplinary proceeding, the Division of Administrative Hearings' Hearing Officer entered a Recommended Order on September 26, 1986, finding respondent guilty as charged and recommending that his license be suspended for one year and that he be placed on probation for three years. (DOAH Case No. 86-2112) On December 13, 1986, respondent appeared before the Board of Osteopathic Medical Examiners when they considered this Recommended Order. At that time, he was informed by the Board that his license would be suspended for a period of one year. In addition, an attorney for the Board informed the respondent that he must cease practicing at the time he was served with the final, written order.

   
   

3. The Final Order of the Board, dated January 19, 1987, and filed on January 26, 1987, adopted the Recommended Order in toto, including the recommended penalty of suspension and a three year probationary period. The Final Order further set forth certain conditions during the four year period of suspension and probation, and advised respondent of his appellate rights. The written order also stated "This order takes effect upon filing."

   
   

4. Respondent received a copy of the Final Order by certified mail in January of 1987. After receiving that Order, he continued to practice medicine in Florida until July 17, 1987. He continued to see patients, examine patients arid write prescriptions.

   
   

5. Respondent testified that he believed and assumed that he would be served the Final Order by a process server and that, until he was served in that manner, he could continue to practice osteopathic medicine. Respondent admitted that he had received other orders and documents from the Board through the mail.

   
   

6. Although petitioner himself did not desire to appeal the January 26, 1987, Final Order of the Board, a Notice of Appeal was filed on his behalf on February 20, 1987, by Dr. Woodley, the proprietor of Clearwater Community Clinic, because he wanted the respondent to continue practicing. On May 18, 1987, a Motion for Automatic Stay was filed in the appellate court, which motion was granted by an order filed on June 3, 1987. It is not clear from the record who filed the Motion for Stay, but respondent stated that he never consulted an attorney to determine if he had a stay. On June 29, 1987, a Notice of Dismissal of the appeal was filed, and on July 2, 1987, the District Court of Appeal, Second District, entered an Order of Dismissal.

   
   

7. In addition to the Final Order from which the instant charges stem, respondent has been previously disciplined by the Board and has undergone periods of probation. In both of the prior disciplinary actions, respondent was found guilty of abetting an unlicensed person to practice osteopathic medicine.

   In the latter proceeding, he was also found guilty of violating a lawful order of the Board.

   
   

   CONCLUSIONS OF LAW

   
   

8. Disciplinary proceedings against a professional license are penal in nature, and the licensing agency must prove its charges by clear and convincing evidence. Here, the Board has clearly sustained its burden of proof that respondent violated the provisions of Section 459.015(1)(cc), Florida Statutes, (1986 Supplement) which makes it an offense to violate "a lawful order of the board or department previously entered in a disciplinary hearing."

   
   

9. Respondent admittedly continued to practice osteopathic medicine after the Board entered its Final Order suspending his license. His explanation that he expected to be served said Order by a process server and understood it to be ineffective until he was so served is neither rational nor justified. The Final Order stated on its face that it took effect upon filing. In addition, respondent was verbally notified well over a month before the Final Order was filed that the Board had determined to suspend his license. He thus had ample time to inform his patients that he would be discontinuing his treatment of them.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 459.015(1)(cc), Florida Statutes (1986 Supplement), that the previous one-year suspension and three-year probation imposed by the Final Order filed on January 26, 1987, (DOAH Case No. 86-2112) be extended for a period of six months, and that an administrative fine in the amount of $1,000.00 be imposed against the respondent.

Respectfully submitted and entered this 29th day of October, 1987, in Tallahassee, Florida.

DIANE D. TREMOR

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 29th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3126

The proposed factual findings submitted by counsel for the petitioner are accepted and included herein, with one exception. The first sentence of proposed finding of fact number 10 is rejected as contrary to the evidence.

However, as noted in the Conclusions of Law, respondent's misunderstanding in this regard was unreasonable and unjustified.

COPIES FURNISHED:

Leslie Brookmeyer, Esquire Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lawrence E. Urban, D.O. Post Office Box 4672 Clearwater, Florida 33518

Rod Presnell, Executive Director Board of Osteopathic Medical

Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE No.: 0082752

DOAH CASE No.: 87-3126

LAWRENCE E. URBAN, D.O.,

Respondent,

/

FINAL ORDER

Respondent, Lawrence E. Urban D.O., is a licensed osteopathic physician in Florida having been issued license No. OS 0001232. Petitioner has filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. The 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 of Osteopathic Medical Examiners met on December 5, 1987, in Tallahassee, Florida to take final agency action. The Petitioner was represented by Leslie Brookmeyer, Esquire; the Respondent was neither present nor represented. The Board has reviewed the entice record in the case.

The Board ADOPTS the findings of fact and conclusions of law of the recommended order; however, the penalty recommended by the hearing officer is modified to provide that the suspension and probation be for an additional six month period and that the suspension will not terminate until Respondent appears before the Board and demonstrates his ability to safely engage in the practice of osteopathic medicine. The board's stated reason for increasing the penalty to require Respondent's appearance before the board prior to reinstatement is based upon Respondent's refusal to abide by the terms of previous final orders entered by the board, as shown by the record in the instant case, and Respondent's apparent lack of understanding of the previous orders.

Wherefore it is hereby ORDERED that the term of suspension and probation imposed in the final order of January 26, 1987, be extended by six months and until Respondent appears before the Board and is able to demonstrate his ability to safely engage in the practice of osteopathic medicine and his understanding of the terms of the previous final orders. This order takes effect upon filing.

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)(c) within 30 days of the date of filing.

DONE and ORDERED this 21st day of December, 1987.

BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

RALPH GREENWASSER, D.O., ACTING CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Leslie Brookmeyer, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, by Certified Mail to Lawrence E. Urban, D.O., Post Office Box 4672, Clearwater, Florida 33518 and by U.S. Mail to Diane D. Tremor, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301 this 11th day of January, 1988.

Docket for Case No: 87-003126

Orders for Case No: 87-003126