STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4031

)

STEPHEN C. ROOKS, R.T., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on October 15, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Francesca Plendl, Senior Attorney

Department of Professional Regulation 1940 North Monroe St.

Tallahassee, Florida 32399-0750

For Respondent: Mark S. Blechman

Lubet & Blechman

209 East Ridgewood St. Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent has been convicted or found guilty of a crime directly relating to the practice of respiratory care or his ability to practice respiratory care and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed May 23, 1991, Petitioner alleged that Respondent broke into a residence, pinned down the female occupant, threatened to kill her, and inflicted abrasions and bruises to her arms and throat. The Administrative Complaint alleges that Respondent pleaded guilty to burglary of a dwelling and aggravated battery, which are both second degree felonies. The Administrative Complaint alleges that these are crimes that directly relate to the practice of respiratory care or delivery of respiratory care services and, thus, Respondent has violated Section 468.365(1)(c), Florida Statutes.

By Election of Rights filed June 10, 1991, Respondent requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence four exhibits. Respondent called ten witnesses and offered into evidence three exhibits. All exhibits were admitted.

The transcript was filed October 28, 1991. Both parties filed proposed recommended orders. All of Petitioner's proposed findings are adopted or adopted in substance except 3 (subordinate), 7 (irrelevant), and 11 (legal argument). All of Respondent's proposed findings are adopted or adopted in substance except 10 (legal argument) and 38 (legal argument except to the extent that the proposed finding means only that Respondent's practice was, in fact, not affected by the incidents in question).

FINDINGS OF FACT

1. Petitioner is a licensed respiratory therapist, holding license number RT 0000039. He has not been previously disciplined.

   
   

2. Following his completion of a training program in respiratory care at the University of Central Florida in June, 1979, Respondent began his full-time employment at the Orlando Regional Medical Center as a neonatal ICU therapist became a supervisor three years later. Almost three years after becoming a supervisor, in April, 1985, Respondent became an educational coordinator. He was employed in this capacity at the time of the events in question.

   
   

3. During his employment at the Orlando Regional Medical Center, Respondent met a nurse, whom he began to date. The relationship endured for about six years. At first, they got along well, but, after about four years, the relationship deteriorated.

   
   

4. Seeking marital counselling, Respondent and his female companion were told that each was manipulating the other and their relationship involved unhealthy, obsessive aspects.

   
   

5. On the evening of June 12, 1990, Respondent confronted his female companion about another man whom she was dating later that evening. In a jealous rage when she did not return to her home when she had said she would, Respondent drove to her house and entered without permission, using a key that he had obtained without her consent. Respondent found the woman, who had since returned home, and initiated an angry, violent altercation.

   
   

6. Respondent grabbed the woman, inflicting four or five bruises and scratches. The marks were mostly on the woman's arms with one small scratch on her neck. Ripping the woman's clothing, Respondent forcibly removed a tampon from her vagina. He lied to her that he had already killed her new male friend and threatened to kill her.

   
   

7. When he finally calmed down, he and the woman spoke for sometime before he left the house. Once he left, the woman called the police and reported what Respondent had done. She was very frightened by the incident and was crying when the police arrived.

   
   

8. After being arrested on various charges, Respondent eventually pleaded guilty to the felonies of aggravated battery and burglary of a dwelling. The sentencing section of the final order states that "adjudication of guilt was

   withheld, a finding of guilt entered." The judge sentenced Respondent on November 5, 1990, to 24 months' community control followed by 10 years' supervised probation.

   
   

9. To date, Respondent has completed his sentence satisfactorily, including counselling to enable him to control his anger. He has since married a woman other than the woman who was the subject of the incident described above, and they have recently had a child.

   
   

10. Numerous coworkers, supervisors, friends, and family testified in support of Respondent. His professional colleagues uniformly described Respondent as a highly competent practitioner, whose practice was never affected by the above-described incident or other acts of ill-temper. Respondent has above-average skills as a respiratory therapist and has ably trained other persons in the profession. All of the witnesses described Respondent as a supportive, patient, and caring person for whom the subject incident was out of character.

    
    

11. The loss of his license would have a severe effect upon Respondent's ability to support is family. If allowed to continue to practice as a respiratory therapist, Respondent would not represent any risk to the public or his patients.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to rules are to the Florida Administrative Code.)

    
    

13. Section 468.365(2) authorizes the Board of Medicine to revoke or suspend a certificate or registration, impose an administrative fine not in excess of $1000 per count, place the practitioner on probation upon such conditions as the Board deems suitable, or issue a reprimand for a violation of Section 468.365(1).

    
    

14. Section 468.365(1)(c) provides that discipline may be imposed if the practitioner is:

    
    

    convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to respiratory care services or to the ability to deliver such services.

    
    

15. Respondent has been convicted or found guilty of two felonies. The facts do not support Respondent's argument that he has not been found guilty, as required by the statute. He pleaded guilty, was found guilty either implicitly or explicitly, and was sentenced to a substantial period of probation.

    
    

16. Respondent was guilty of serious crimes that directly relate to respiratory care services or to the ability to deliver such services. In Greenwald v. Department of Professional Regulation, 501 So. 2d 740 (Fla. 3d DCA), rev. denied, 511 So. 2d 998 (Fla.), cert. denied 484 U.S. 986 (1987), the court applied similar statutory language involving the practice of medicine to a physician who had solicited the murder of his ex-wife. The court concluded

    that this action "evidences warped judgement and disregard for human life--the antithesis of that which is required and expected of physicians." Id. at 741.

    
    

17. The present crimes also evidence very bad judgment and thus directly relate to respiratory care services or to the ability to deliver respiratory care. It is true that the victim was not a patient in the care of Respondent. It is also true that the victim, although a coworker of Respondent, was not standing in such a relation to Respondent at the time of the attack. However, a licensed respiratory therapist must work in close, relatively unsupervised contact with patients, and discipline is appropriate for an outburst of unprovoked violence of the type involved in this case.

    
    

18. Rule 21M-37.001(2) requires the Board of Medicine to take into consideration the following factors in determining the appropriate discipline in each case:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses;

    4. The length of time since the date of the violation;

    5. The number of previous disciplinary cases filed against the . . . registrant;

    6. The length of time . . . registrant has practiced;

    7. The actual damage, physical or otherwise, to the patient;

    8. The deterrent effect of the penalty imposed;

    9. The effect of the penalty upon the . registrant' s livelihood;

    10. Any efforts for rehabilitation;

    11. Any other mitigating or aggravating circumstances.

        
        

19. Determining the appropriate penalty requires careful analysis of the circumstances of the case in light of the guidelines set forth in the rule. Respondent has practiced a long time without prior incident or discipline. Although no more than 18 months have passed since the attack, the amount of time is substantial in view of Respondent's past character and successful completion of subsequent counselling, as well as the isolated nature of the incident in question. Respondent poses no threat to the victim or patients; thus, the deterrent role of a penalty is nominal. In addition to being unnecessary to protect the public, a suspension or revocation of Respondent's license would have an adverse effect upon his ability to support his family.

    
    

20. The key factors are the severity of the offense and the danger to the public. The offense was not slight. The victim was understandably terrified by Respondent's violent attack. However, the evidence does not disclose that the victim suffered significant physical injury. The prior relationship between Respondent and the victim has a bearing in determining the proper penalty. An attack of this type upon a total stranger ordinarily means that the safety of Respondent's future patients could not be assured. Under such circumstances, a penalty of revocation, which Petitioner seeks in this case, would be appropriate.

    
    

21. However, in this case, the facts surrounding the incident do not suggest that Respondent represents a threat to the general public. The victim was not a total stranger, but rather a person with whom Respondent had been involved in a relationship for several years. Doubtlessly, she had a right to terminate the relationship without sustaining a violent, unprovoked attack, but,

    equally doubtless under the facts of the case, the attack, for which Respondent alone was responsible, would not have taken place but for the past relationship.

    
    

22. Happily married and raising a child, Respondent is unlikely to find himself in another bad relationship, and, even if he did, he now possesses the skills to resolve personal disputes in a mature, nonviolent manner. For these reasons, the safety of persons whose care has been entrusted to Respondent can be assured. In light of Respondent's skills and past contributions to the profession, he should be allowed to continue to provide respiratory care.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Board of Medicine enter a final order imposing an administrative fine of $1000 and placing Respondent on probation for a period of five years, during which time Respondent shall undergo such supervision and monitoring as the Board deems suitable.

ENTERED this 8th day of November, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1991.

COPIES FURNISHED:

Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Francesca Plendl, Senior Attorney Department of Professional Regulation 1940 North Monroe St.

Tallahassee, FL 32399-0750

Mark S. Blechman Lubet & Blechman

209 East Ridgewood St. Orlando, FL 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-004031

Orders for Case No: 91-004031