STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )

)

Petitioner, )

) CASE NO. 87-3322

vs. )

)

LEON L. SHORE, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on December 14, 1987, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Derk A. Young, Esquire

320 Southeast 9th Street

Fort Lauderdale, Florida 33316

For Respondent: Daird G. Vinikoor, Esquire

420 Southeast 12th Street

Fort Lauderdale, Florida 33316 PRELIMINARY STATEMENT

At issue in this proceeding is whether respondent, a licensed osteopathic physician, prescribed Percodan for himself, in violation of Section 459.015(1)(r), Florida Statutes (1985), and whether respondent changed the address of his primary place of practice without first notifying the Department of Professional Regulation, in violation of Sections 459.008(5) and 459.015(1)(x), Florida Statutes (1985).

At hearing, petitioner presented the testimony of Harvey Sogaloff, James R. Golden, and Leon L. Shore. Petitioner's exhibit 1 was received into evidence.

Respondent testified on his own behalf, and his exhibits 1-5 were received into evidence.

The transcript of hearing was filed December 31, 1987, and the parties were granted leave until January 11, 1988, to file proposed findings of fact. The parties proposed findings of fact have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Leon L. Shore, was at all times material hereto a licensed osteopathic physician in the State of Florida, having been issued license number OS 0001600.

   
   

2. On or about December 19, 1985, respondent presented to Harvey Sogoloff a pharmacist licensed in the State of Florida, a prescription to be filled. The subject prescription was written by respondent, and prescribed Percodan for himself. Mr. Sogaloff duly filled the subject prescription.

   
   

3. Percodan, whose active ingredient is Oxicodone Hydrochloride, a salt of oxicode, is a Schedule II narcotic drug, as defined by Section 893.03(2)(a), Florida Statutes (1985).

   
   

4. At the time of the prescription was written, respondent maintained his primary place of practice at 4801 South University Drive, Davie, Florida.

   During the first week of September, 1986, respondent closed his practice at that location without notice to petitioner, and did not thereafter practice for several months.

   
   

5. In January, 1987, respondent resumed his practice at a new location, without notice to petitioner. Respondent asserts, however, that 2-3 weeks after commencing such practice, he instructed one of the medical directors at the center to notify petitioner of his new address. There was no proof that such notice was given, but following the commencement of this case, respondent did notify the petitioner of his new address, and no untoward consequences were shown to have resulted from such delay.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Pertinent to this case, Section 459.015(1), Florida Statutes (1985), prescribes the following grounds for which disciplinary action can be taken against respondent's license:

   
   

   (r) Prescribing, dispensing, or administering any medicinal drug appearing on any

   schedule set forth in Chapter 893 by the osteopathic physician to himself, except one prescribed, dispensed, or administered to the osteopathic physician by another practitioner authorized to prescribe, dispense, or administer medicinal drugs.

   * * *

   (x) Violating any provision of this chapter....

   
   

8. Section 459.008(5), Florida Statutes (1985), provides:

   
   

   The licensee must have on file with the department the address of his primary place of practice within this state prior to engaging in that practice. Prior to changing the address of his primary place of practice,

   whether or not within this state, the licensee shall notify the department of the address of his new primary place of practice.

   
   

9. In the instant case, the burden was on the petitioner to demonstrate by clear and convincing evidence that respondent violated the provisions of Sections 459.015(1)(r) and (x), Florida Statutes (1985). Ferris v. Turlington,

510 So.2d 292 (Fla. 1987). Petitioner has sustained its burden of proof.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered placing respondent on probation

for a period of one (1) year subject to such conditions as the board may

specify, and imposing an administrative fine against respondent in the sum of

$1,000.

DONE AND ORDERED this 21st day of January, 1988, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1988.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 2.

1. & 8. Addressed in paragraphs 4 and 5.

2. & 4. Addressed in paragraphs 2 and 3.

5-7 & 9. Rejected as not a finding of fact, or subordinate. Respondent's proposed findings of fact are addressed as follows:

1. Not necessary to result reached.

2. Not necessary to result reached.

3-9 & 12. Rejected as not a finding of fact, subordinate, or contrary to the result reached.

10 & 11. Addressed in paragraphs 4 and 5.

COPIES FURNISHED:

David G. Vinikoor, Esquire DAVID G. VINIKOOR, P.A.

420 S. E. Twelfth Street

Fort Lauderdale, Florida 33316

Derk A. Young, Esquire

320 Southeast 9th Street

Fort Lauderdale, Florida 33316

Mr. Rod Presnell Executive Director

Osteopathic Medical Examiners Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003322

Orders for Case No: 87-003322