STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM D. PLUMMER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2060

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on December 13, 1992, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Samantha D. Boge, Esquire

Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302

For Respondent: Allen Grossman

Assistant Attorney General

PL-01 The Capital, Suite 1602 Tallahassee, Florida 32399-1891

STATEMENT OF THE ISSUE

Whether or not Petitioner is entitled to a license by endorsement to practice medicine pursuant to Section 458.313(1) F.S.

PRELIMINARY STATEMENT

In May of 1991, Petitioner submitted to the Florida Board of Medicine an application for license to practice medicine in Florida. The Board's order denied the application, referencing Sections 458.301, 458.313(1), 458.311(1)(c) and (d), 458.331(1)(a),(b),(s), and (hh) and 458.331(4) F.S.

By prehearing stipulation, the parties agreed that Petitioner had met all requirements for licensure by endorsement with the following exceptions only:

1. Whether or not Dr. Plummer made fraudulent misrepresentations in his application for licensure in Florida.

   
   

2. Whether or not Dr. Plummer is able to practice medicine with reasonable skill and safety to patients. (HO Exhibit 1).

At formal hearing, Petitioner testified on his own behalf and presented the oral testimony of Ferrol Lee, M.D. Petitioner had a total of ten exhibits, including the deposition of one expert witness, Roger Goetz, M.D., and the

after-filed deposition of Dr. Nicholas Colangelo, psychologist, admitted in evidence. Petitioner's Exhibit 8 was withdrawn at formal hearing.

Respondent presented the oral testimony of Petitioner and had three exhibits admitted in evidence.

A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner William D. Plummer is an applicant for licensure as a physician by endorsement in Florida.

   
   

2. On May 2, 1991, Petitioner filed a licensure application with the Department of Professional Regulation.

   
   

3. On page one of the application is the question:

   
   

   Are you now or have you ever been licensed in any State, Canada, Guam, Puerto Rico or

   U.S. Virgin Islands? Yes No .

   
   

   Petitioner marked the "No" answer to this question on his application.

   
   

4. On page four of the application is the question:

   
   

   Have you ever been denied an application for licensure to practice medicine by any state board or other governmental agency of any state

   or country? Yes No .

   
   

   Petitioner marked the "No" answer to this question on his application.

   
   

5. On June 11, 1991, Petitioner was sent a notice that his application was incomplete. In that notice, he was asked:

   
   

   Are you now, or have you ever been licensed to practice medicine in any State?

   
   

   In response, Petitioner sent a letter stating only that he had received a Pennsylvania medical license on July 3, 1991. This date was subsequent to his making the initial Florida application on May 2, 1991.

   
   

6. As part of the application process in Florida, Petitioner was asked to appear before the Credentials Committee of the Board of Medicine on January 25, 1992, in Tampa, to discuss various matters regarding his application. In the course of discussing various issues with the Credentials Committee Petitioner was asked:

   
   

   Were you ever denied a license to practice medicine in another state?

   In response, Petitioner stated,

   
   

   No. I have my Pennsylvania license. In my training initially--my medical training license took some time, and I think that was in 1985 and it was because we didn't have a program in Pennsylvania to work with the State Board.

   
   

   Later, Petitioner told the Committee,

   
   

   I thought there was a difference between a medical training license and a medical license. A medical training license is under supervision at a hospital.

   
   

7. In point of fact, in 1985, Petitioner had applied for a graduate medical license in Pennsylvania in order to enter the residency program at Misercordia, Mercy Hospital where he had already been accepted. The Pennsylvania graduate medical license allows the licensee to work as a physician under supervision only as a resident in the institution named on the license. Petitioner's application for this license was rejected because the Pennsylvania Board found that Petitioner had "knowingly falsified" an answer regarding his addiction to alcohol. The Pennsylvania Board further prohibited Petitioner from reapplying for a graduate medical license until June 6, 1986. After formal hearing, the Pennsylvania Board entered its order as follows:

   
   

   ... an Applicant with a proclivity toward engaging in word ploys in these important matters runs the risk, as here, of being in error and thus committing an active concealment and misrepresentation. A more prudent course perhaps for such an Applicant would be to err on the side of giving excess (voluntary) information in responding to such a formal and serious written questionnaire.

   
   

   Medical residents in training programs "practice medicine." In Pennsylvania, residents are prohibited from practicing medicine unless they receive a graduate medical license from the State of Pennsylvania. Because of the Pennsylvania Board's denial of Petitioner's application for a graduate medical license, he was unable to accept the position at Mercy Catholic Hospital. However, in 1986, Petitioner reapplied for a graduate medical training license in Pennsylvania and the application was granted. This graduate medical training license was renewed annually thereafter while Petitioner continued to train in Pennsylvania.

   Petitioner still held the latest renewed graduate medical training license when he applied for Florida licensure in May 1991.

   
   

8. Petitioner was granted his permanent unrestricted medical license in Pennsylvania in July 1991. (See Findings of Fact 2 and 5 supra.)

   
   

9. At formal hearing, Petitioner explained that because Pennsylvania's graduate medical training license only allows participation in a residency training program at an approved institution named on the face of the license, he did not consider it to be a "license to practice medicine," and accordingly he did not disclose to Florida the Pennsylvania Board's 1985 denial of such license. He represented that he believed that because the Pennsylvania graduate medical training license was institution-specific, limited to one year in scope, and only a prerequisite to supervised additional medical education, it did not constitute what Florida's inquiries were all about.

10. By common English usage, Pennsylvania law, and Florida law, the authority that Dr. Plummer was denied in 1985 and granted in 1986 by the Pennsylvania Board constitutes a "license to practice medicine," contrary to his interpretation of that term when he filled out his Florida application and responded to inquiries during the course of Florida's licensure investigation. He should have identified it in response to each relevant question or inquiry.

    
    

11. However, Petitioner's interpretation of Florida's questions and his answers thereto do not constitute attempting to obtain a license to practice medicine by fraudulent misrepresentation or concealment of a material fact for the following reasons: Petitioner's formal hearing testimony was credible and unrefuted. Petitioner was consistent in his interpretation of the questions on this subject in that he also did not disclose to Florida the "good" facts that the Pennsylvania Board had subsequently granted him the graduate medical license in 1986 and had renewed it annually and that he still held such a license at the time of filling out his Florida application. Also, in the Florida application, he readily and fully disclosed to Florida the "bad" facts of his detrimental past history of alcoholism. Dr. Lee testified as a medical physician licensed to practice in New York, Pennsylvania, and Iowa, that he considered Petitioner's interpretation of the Florida application questions concerning prior medical licensing reasonable and that he also considered Petitioner's answers to those questions reasonable. No contrary testimony was presented. The American Medical Association profile does not list Petitioner's Pennsylvania graduate medical training license as a "license to practice medicine." Various qualified credible witnesses acknowledged that Petitioner's failure to disclose his alcoholism to the Pennsylvania Board in 1985 was a denial symptom of his alcoholism at that time and was not symptomatic of his character makeup now that his alcoholism is in remission or at any time he responded during the Florida licensing process. Respondent presented no direct evidence to prove that Petitioner had a fraudulent intent in answering as he did. Although fraudulent intent may sometimes be inferred from the circumstances, the circumstances herein do not permit such an inference.

    
    

12. On his initial Florida application, Petitioner could not correctly recall the dates of his medical training because he had not kept accurate records himself and because of his alcoholic condition in prior years. One representative error he made is that he listed a full year in one program which he attended for only four months. However, he approximated the dates as best he could and revealed all training programs, even those in which he was unsuccessful, and he consistently responded to the Board that he would defer to whatever the training institutions' records showed. He also concealed no rehabilitation programs he had been in. No intent to defraud or conceal can be inferred from these circumstances.

    
    

13. Petitioner is an alcoholic.

    
    

14. Petitioner's alcoholism had its inception sometime during his childhood, possibly as early as the age of eight years.

    
    

15. Petitioner graduated from Pennsylvania State University summa cum laude, in 1976. He matriculated from the Uniformed Services University in 1980.

    
    

16. Toward the end of his time in medical school, approximately 1980, Petitioner began to realize that he had a problem with alcohol.

    
    

17. In 1980, Petitioner entered a surgical training program at Balboa Hospital in San Diego, California. As a direct result of his problems with

    alcohol, Petitioner left that surgical training program in 1981 without completing his training.

    
    

18. Between 1981 and 1983, Petitioner was partially supported by his parents, performed odd jobs as a handyman and searched for a new training program.

    
    

19. In July, 1983, Petitioner entered an internal medicine training program at St. Raphael Hospital in New Haven, Connecticut. After approximately five months and prior to completion of training in New Haven, Petitioner's problems with alcohol forced him to terminate participation in the internal medicine training program.

    
    

20. In December 1983, Petitioner entered a rehabilitation program at Marworth in Waverly, Pennsylvania. He remained as an inpatient at Marworth until February 1984 when he was discharged to Little Hill--Alina Lodge, a continuing care facility in Blairstown, New Jersey, where he remained as an inpatient until May 1984. Petitioner left Little Hill--Alina Lodge with staff approval.

    
    

21. Between May 1984 and November 1986, Petitioner worked at various odd jobs as a handyman and helped his parents relocate and build in Florida. He also waited for his graduate medical training license in Pennsylvania. (See Finding of Fact 7, supra) Petitioner described both the periods of 1981-1983 (See Finding of Fact 18 supra.) and 1984-1986 as periods of "self-employment" whereas "unemployment" might have been more accurate. This discrepancy was neither "fraud" nor "concealment," as those terms are generally understood.

    
    

22. In November, 1986, Petitioner entered an internal medicine training program at Misercordia, Mercy Catholic Medical Center in Philadelphia, Pennsylvania. Petitioner's problem with alcohol caused him to behave in a manner which indicated the presence of an active physical impairment of alcoholism and resulted in Petitioner's suspension and later resignation from that program after approximately three and a half months and prior to completion of training.

    
    

23. In June 1987, Petitioner returned to Marworth as an inpatient. He remained under treatment for approximately one month and then stayed on at Marworth as an inpatient for approximately a month. Thereafter, he worked as a janitor and groundskeeper for nearly two years while concentrating on his life problems that had contributed to his alcoholism. Many professionals reviewing his case have been favorably impressed with Petitioner's dedication and sacrifice during this period of time.

    
    

24. In 1989, Petitioner entered an internal medicine training program at Robert Packer Hospital in Sayre, Pennsylvania. This hospital is part of the Guthrie Healthcare System where Petitioner is currently employed. (See Findings of Fact 28, 43, 49 infra.).

    
    

25. In June 1990, Petitioner took a vacation to the Florida keys and while on vacation went on a four day drinking binge.

    
    

26. Petitioner voluntarily reported himself for further treatment and returned to Pennsylvania. While awaiting placement in another rehabilitation program, he suffered an alcohol withdrawal induced seizure.

27. In July 1990, Petitioner entered his fourth inpatient treatment program for alcoholism at Bethany Center in Homesdale, Pennsylvania, where he remained for one month. His absence was counted as vacation and sick time while he was able to complete his internal medicine training program at Robert Packer Hospital on schedule in April 1992.

    
    

28. The Guthrie Health Care System immediately offered him his current position, with full knowledge of his excellent academic record and clinical references and his alcohol recovery history. (See, Findings of Fact 43 and 49 infra).

    
    

29. Currently, Petitioner participates in the Physician's Health Program of the Pennsylvania Medical Society and since January 1991 has been participating, through counseling, in a program of recovery from alcoholism with the Bradford Sullivan Drug and Alcohol Program.

    
    

30. Both the Florida Physician Resource Network and the Pennsylvania Physician's Health Program impaired physicians programs have opined that Petitioner's history of alcoholism should not bar his licensure in Florida at the current time. (See, Findings of Fact 31-39 infra.)

    
    

31. Dr. Roger Goetz is the Director of Florida's PRN and is the Department of Professional Regulation's consultant charged with implementing Florida's Impaired Practitioner Program. The Physician Resource Network includes the Physician Recovery Network (PRN). In the past five years, the PRN has evaluated approximately 350 physicians with impairments at the request of the Board of Medicine. Over this period, Dr. Goetz cannot recall a single instance where an applicant endorsed by PRN has failed to maintain sobriety. PRN statistics show that at least 97 per cent of the practitioners on contract have not reverted to alcohol or chemical use.

    
    

32. Petitioner is willing to enter such a contract with PRN if he is licensed.

    
    

33. Dr. Goetz believes Petitioner will be able to practice medicine with skill and safety to patients in Florida, provided he enters into a contract with the PRN. Dr. Goetz opined that Petitioner's relapse in 1990 does not indicate the likelihood of future relapses because Petitioner has continued with a more effective treatment program and support system geared to his needs as a physician.

    
    

34. Dr. Goetz, on behalf of PRN, recommended a five-year contract for Petitioner designed to identify pre-relapse behavior and entail that he remain chemically abstinent, be subjected to random body fluid analysis, establish a doctor/patient relationship and receive care from another physician for his personal health, obtain a monitoring physician, attend group therapy, attend Alcoholics Anonymous meetings, have significant family members involved in his recovery, notify the PRN of any problems in his life, including changes in his physical health, be willing to withdraw immediately should there be any problems surrounding his practice, and participate and cooperate with the PRN at all times.

    
    

35. Such a contract would provide Petitioner with an environment in Florida which is similar to his current recovery environment in Pennsylvania.

    
    

36. Dr. Goetz testified that to the extent of his knowledge Petitioner has a good reputation for truth and veracity.

37. At the request of PRN, Petitioner was evaluated for chemical dependency by Leah H. Williams, M.D. in July 1991. Dr. Williams reported to PRN that she was in favor of Florida licensure for Petitioner.

    
    

38. In September 1991, Petitioner received a thorough outpatient evaluation from Dr. Lynn Hankes, PRN's approved evaluator. Dr. Hankes also endorsed Florida licensure for Petitioner, contingent upon Petitioner entering the PRN program and participating in ongoing psychotherapy.

    
    

39. Penny Ziegler, M.D., Medical Director of the Pennsylvania Physician's Health Program, supports Petitioner's application for licensure in Florida.

    
    

40. Nicholas F. Colangelo, Ph.D., a psychologist, supports Petitioner's application for licensure in Florida. Dr. Colangelo may be considered as a past and currently treating psychologist for Petitioner. They have known each other since Petitioner was at Marworth. Dr. Colangelo is a nationally certified alcohol and drug counselor who is Vice-President of Clearbrook, Inc., an alcohol and drug addiction treatment facility. He is a recovering alcoholic who has been sober for over seventeen years. Twenty-five to thirty-five per cent of his addiction counseling focuses on professionals. According to Dr. Colangelo, professionals and other high-achieving individuals like Petitioner often have difficulty accepting that they must submit to the whole program for recovery from alcoholism but once they do, they recover at a higher than average rate.

    In Dr. Colangelo's opinion, Petitioner has demonstrated conduct which gives him a better than average prospect for continued sobriety.

    
    

41. Dr. Colangelo opined that Petitioner's current employment in a tertiary care facility, the Guthrie Clinic, coupled with the management of the ongoing licensure proceedings in Florida, provide Petitioner with as much environmental stress as he has ever experienced, but the existence of environmental stress does not play a significant role in Petitioner's continued sobriety.

    
    

42. Dr. Colangelo perceived Petitioner as a person of truth and veracity.

    
    

43. Petitioner is currently employed by the Guthrie Healthcare System, a multi-specialty private medical practice clinic employing approximately 110 physicians in non-surgical areas of medicine. Petitioner is responsible for the initial evaluation of nonsurgical patients. It is within his job duties to determine the type of medical care to be provided to each nonsurgical patient entering the clinic. In that position, he sometimes provides all primary care to the patient or directs the patient to the appropriate subspecialist.

    
    

44. Apart from the four days in 1990, Petitioner has been continuously sober for five and one-half years.

    
    

45. That 1990 four day relapse did not detrimentally affect his patient care.

    
    

46. At that time, Petitioner contacted Florida's PRN. He has maintained contact with Dr. Goetz ever since.

    
    

47. According to Dr. Colangelo and Dr. Goetz, two years of continuous sobriety is a benchmark most professional associations accept for granting a license or privilege.

48. The American Board of Internal Medicine uses such a two year benchmark. Petitioner has met all credentialing requirements to obtain certification by the American Board of Internal Medicine.

    
    

49. Dr. Ferrol Lee currently is responsible for the nonsurgical quality of medicine at Guthrie, with overall supervision of the 110 physicians employed there, including Petitioner. He has worked with Petitioner both during Petitioner's residency at Robert Packer and during his current employment. He views Petitioner as a hard worker whose personal struggle with alcoholism gives him valuable insight into the care of patients who struggle with similar problems. He ranks Petitioner within the top 5-10 residents of the 100 he has worked with over the past nine years. Dr. Lee testified that Petitioner has continually demonstrated good moral character and has a flawless reputation for truth and veracity. Dr. Lee endorses Petitioner's licensure in Florida.

    
    

50. The State of Pennsylvania has never taken disciplinary action against Respondent's license to practice medicine in that state.

    
    

    CONCLUSIONS OF LAW

    
    

51. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

    
    

52. The Board of Medicine's order of denial cited the following statutes, the pertinent parts of which are set out here.

    
    

    458.313 Licensure by endorsement; requirements; fees.

    1. The department shall issue a license by endorsement to any applicant who, . . . demonstrates to the board that he:

       1. Has met the qualifications for licensure in s. 458.311(1)(b)-(f)

    
    

    458.311 Licensure by examination; requirements; fees.

    (1) Any person desiring to be licensed as a physician shall apply to the department to take the licensure examination. The department shall examine each applicant whom the board certifies:

    1. Is of good moral character.

    2. Has not committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331.

    * * *

    458.331 Grounds for disciplinary action; action by the board and department.

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection

    2. may be taken:

       1. Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations, or through an error of the department or the board.

       2. Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including

    its agencies or subdivisions. . . .

    (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. . . .

    * * *

    (hh) Misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure.

    (4) The board shall not reinstate the license of a physician, or cause a license to be issued to a person it deems or has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and conditions set forth in the

    final order and that such person is capable of safely engaging in the practice of medicine.

    [Emphasis supplied]

    
    

53. The parties stipulated that Petitioner met all requirements for issuance of a license by endorsement except as noted in the Board's order.

    
    

54. Essentially, the Board contended that Petitioner is not entitled to licensure by endorsement for three reasons: that he is not able to practice medicine with reasonable skill and safety to patients because of alcoholism; that he made fraudulent misrepresentations in his Florida application and during the licensure process, and that his license to practice medicine was denied by Pennsylvania in 1985.1

    
    

55. With regard to Petitioner's Florida application for license by endorsement and the process and procedure associated therewith, the facts as found do not establish that he attempted to obtain a Florida license to practice medicine by fraudulent misrepresentation or by misrepresenting or concealment of a material fact. See, Sections 458.331(1)(a) and (hh) F.S. Petitioner presented a rational, albeit totally "unlegalistic," explanation for all of his misstatements and gaps in information. In the matter of the Pennsylvania denial of a graduate medical training license, specifically, his explanation was acceptable and reasonable to another medical physician, Dr. Lee, who testified accordingly. For all the reasons set out in the foregoing findings of fact, Petitioner's and Dr. Lee's reasoning is found credible. This was a situation wherein Petitioner misunderstood the question and so presented neither "bad" nor "good" information about that Pennsylvania license. Such a misunderstanding should not bar Florida licensure on that ground alone. See, Rodriguez v. Department of Professional Regulation, DOAH Case No. 87-4658 (Recommended Order of H.O. Keisling entered August 24, 1988; No Final Order provided to DOAH.) Petitioner is also credible on the training, rehabilitation, and employment gaps. Respondent did not adduce any evidence that any of Petitioner's representations, although not accurate or precise, was intended to deceive or mislead Florida's Board. Absent such evidence, there can be no basis to conclude that Petitioner made fraudulent misrepresentations. See, Department of Professional Regulation v. Morgan, 14 FALR 3958 (1992), Gentile v. Department of Professional Regulation, 448 So.2d 1087 (Fla. 1st DCA 1984) and Gentry v. Department of Professional and Occupational Regulation, 293 So.2d 95 (Fla. 1st DCA 1974). Also, upon the foregoing matters, there is no evidence of a current absence of good moral character. See, Section 458.311(1)(c) F.S.

56. The facts as found do establish that Petitioner was denied a medical license in 1985 by the medical licensing authority of another jurisdiction, namely Pennsylvania, because he omitted information on his Pennsylvania application about his alcoholism. A Florida medical license may be disciplined for such an act, and consequently, the Board may deny licensure by endorsement upon that ground. See, Sections 458.331(1)(a) and (b) and 458.311(1)(d) F.S. However, that situation nearly eight years ago when Petitioner was deeply in alcoholic denial does not constitute persuasive evidence of a current bad moral character or of bad moral character during the period his alcoholism has been in remission which is the greater part of the last five years. See, Section 458.311(1)(c) F.S. This is particularly true in light of the extensive evidence of Petitioner's good moral character and truth and veracity during that five year period to date.

    
    

57. Moreover, to deny Petitioner the Florida license solely on the basis of Pennsylvania's 1985 temporary denial, given the totality of the circumstances herein, smacks of arbitrary and capricious treatment. There has never been any allegation that Petitioner was initially denied the Pennsylvania license due to his practice of medicine or that his alcoholism at that time related to his practice of medicine. Six months after denying Petitioner's first application, the Pennsylvania Board granted the graduate training license and renewed it each successive year thereafter. In 1991, the Pennsylvania Board granted Petitioner an unrestricted license to practice medicine. Section 458.331(1)(b) F.S. must be read in conjunction with the legislative intent of Chapter 458 F.S., as set forth in Section 458.301 F.S. Competency of physicians and the safety and welfare of their Florida patients is the purpose of this licensing and disciplinary statute. The intent of the statute is not to punish a physician for a mistake nearly eight years ago in another jurisdiction that was not directly related to the practice of medicine and which has been addressed, and to all intents and purposes "forgiven," by the appropriate authority of that jurisdiction. A better solution than outright denial of the Florida license has been provided in Sections 458.313(7) and (8) F.S. [1991], discussed infra.

    
    

58. Petitioner's alcoholism is currently in remission. Despite an extended period of denial and frequent relapses in the remote past, Petitioner has prevailed over his disease for the past five years but for a four day relapse on vacation while not actively engaged in the practice of medicine.

    This scenario does not amount to currently "being unable to practice medicine with reasonable skill and safety to patients by reason of . . . use of alcohol." See, Section 458.331(1)(s) F.S. Neither has Pennsylvania disciplined or attempted to discipline Petitioner for unsafe medical practice. The unrebutted evidence is that currently Petitioner is capable of practicing with reasonable skill and safety and that he is currently of good moral character. The unanimous testimony of Petitioner, all his colleagues, and all the experts is that Petitioner can maintain his good character and his sobriety and practice as an effective, skilled, safe, and uniquely talented physician if he continues in a physician recovery program such as the one he is currently involved with in Pennsylvania. Florida has such a program, the PRN. Petitioner's need for such a program will probably never be eliminated, although he has already passed the two year benchmark of sobriety required by most medical licensing organizations. No one can guarantee 100 per cent safety of Petitioner or any other physician.

    Dr. Goetz, Respondent's consultant and general overseer of PRN, ranks Petitioner's chances of sobriety and thus being safe to practice medicine in Florida as 97 per cent if he enters into the proposed PRN contract. Petitioner does not oppose such a contract. However, Chapter 458 F.S. does not provide for a license to be issued by endorsement, conditioned upon entry into a PRN contract, simply because without such a contract Petitioner may be incapable of

    practicing medicine with reasonable skill and safety in the future, based upon contingent circumstances which have not come to pass.2 Section 458.313(1)(a) provides for denial of a license by endorsement only if at the time of licensure Petitioner fails to meet the qualifications set out in Section 458.311(1)(b)--

    (f) F.S. Section 458.311(b) covers only age; 458.311(c) covers only moral character; 458.311(1)(d) covers only commission of an act or offense in this or another jurisdiction which would constitute the basis for disciplining a physician pursuant to Section 458.331 F.S.; 458.311(1)(e) covers only minimal preprofessional post secondary courses; 458.311(1)(f) covers only minimal medical education training requirements. The present case does not present a situation in which an applicant's past record for professional skill and safety by reason of alcoholism combined with his current condition may be used to reasonably predict that he will be unsafe now and in the future. In that situation, licensure by endorsement could surely be denied.

    
    

59. However, Section 458.313(7) F.S., governing licensure by endorsement, provides in pertinent part,

    
    

    . . . the department may not issue an unrestricted license to any individual who has committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to Section 458.331. When the board finds

    that any individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to Section 458.331, then the board may enter an order imposing one or more of the terms set forth in subsection (8).

    
    

    Section 458.313(8)(c) provides,

    (8) When the board determines that any applicant for licensure by endorsement has failed to meet

    to the board's satisfaction each of the appropriate requirements set forth in this section it may enter

    an order requiring one or more of the following terms:

    (c) Certification to the department of an application for licensure, certification, or registration with placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring

    the physician to submit to treatment, attend continuing education courses, submit to reexamination, or work under the supervision of another physician.

    
    

60. Because Petitioner was denied the Pennsylvania graduate medical training license in 1985, the Florida Board may now impose any of the conditions upon licensure by endorsement set out in Section 458.311(8)(c) F.S. See, Sections 458.311(1)(d) and 458.313(1)(a), (7), and (8)(c) and 458.331(1)(a) and

(b) F.S. Since Petitioner's 1985 Pennsylvania licensure denial resulted from his "alcoholic denial" at that time, it is not unreasonable that the conditions on his license relate to control of his disease of alcoholism.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered certifying Petitioner for licensure

with placement of Petitioner on probation for five years subject to his entering into and abiding by a contract acceptable to the Physicians Recovery Network.

RECOMMENDED this 20th day of April, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1993.

ENDNOTES

1/ Section 458.313 F.S. permits the Board to issue a license by endorsement, provided Petitioner has met all of the qualifications of Section 458.311(1)(b)--

(f) F.S. Section 458.311(1)(d) F.S. prohibits acts or offenses in other jurisdictions which would constitute the basis for disciplining a Florida physician pursuant to Section 458.331 F.S. Section 458.331(1)(a) and (b) F.S. would permit disciplining Petitioner in Florida for the Petitioner's 1985 situation with the Pennsylvania Board.

Petitioner asserted there had been a stipulation between the parties that the 1985 situation with the Pennsylvania Board was only an issue with regard to moral character and alcoholism. However, to be binding, stipulations must be specific and clear. The record sets forth an ambiguous stipulation. The parties tried the case as if this were a coequal issue. Respondent has argued the issue of the Pennsylvania denial as a coequal issue. as set out and discussed here. Moreover, Petitioner's own Memorandum also has addressed the issue coequally. Accordingly, it is concluded that no stipulation precluded findings of fact or conclusions of law on this matter.

2/ Presumably, this omission in the statute was designed to avoid unreasonable granting or denying of medical licenses upon mere speculation, but the Legislature might wish to consider it further, since it has addressed a similar situation for licensees by examination at Section 458.311(9)(c) F.S. and licensed physicians in Section 458.331(4) F.S. See also, the line of cases that hold that the Board need not wait for licensed Florida physicians to engage in acts of gross malpractice before it acts to protect the public interest, Major

v. Department of Professional Regulation, 531 So.2d 411 (Fla. 3d DCA 1988), Britt v. Department of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986), Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985).

APPENDIX TO RECOMMENDED ORDER 92-2060

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-2 Accepted except where unnecessary, subordinate, or cumulative.

3 Accepted except as to last sentence due to phraseology. Accepted that Petitioner had good grades and good reports when he was working.

4-19 Accepted except where unnecessary, subordinate, or cumulative.

20 Accepted as modified to more correctly reflect the record evidence. 21-25 Accepted except as unnecessary, subordinate, or cumulative.

1. Rejected in part as conclusory statements of one witness. Remainder accepted as the opinion testimony it is.

2. Accepted except as unnecessary, subordinate, or cumulative.

3. Accepted as modified.

4. Accepted except as unnecessary, subordinate, or cumulative.

5. Rejected as a conclusion of law except to extent of Dr. Lee's personal endorsement which is accepted.

31-48 Accepted except as unnecessary, subordinate, or cumulative

49 Rejected as out of evidentiary context, a personal policy statement only of the witness, mere recitation of testimony, and a conclusion of law.

50-52 Accepted except where unnecessary, subordinate, or cumulative.

53 Rejected as inappropriate commentary on credibility of an out of court statement.

54-57 Accepted except where unnecessary, subordinate, or cumulative.

58 Rejected as legal argument.

59-70 Accepted except as to legal argument and where unnecessary, subordinate, or cumulative. Modified in places to more correctly reflect the credible record evidence as a whole.

Respondent's PFOF:

1-7 Accepted except as unnecessary, subordinate, or cumulative.

8 Accepted as modified to more correctly reflect the credible record evidence as a whole.

9-14 Accepted except as unnecessary, subordinate, or cumulative. 15-16 Rejected as argument.

17-31 Accepted except as unnecessary, subordinate, or cumulative.

32 Rejected as out of context, conclusory and isolated, contrary to the greater weight of the credible evidence.

33-46 Accepted except as unnecessary, subordinate, or cumulative

47-49 Accepted that this is the language employed in part, however as cited it does not convey the flavor of the testimony as a whole or the letter as a whole nor the time frames to which each physician referred. Rejected as misleading and in part, out of context.

1. Accepted in part; rejected in part. These proposals amount to an argument on the credibility of the Petitioner mostly on minor matters not listed in the Board's Order of Denial, such as an automobile accident and driver's license problem. There are no prior inconsistent statements on material issues. The statement of Dr. Colangelo is clearly out of context. Those matters which are not mere argument or unnecessary, subordinate, or cumulative have been utilized to the extent they are supported by the credible record evidence as a whole.

   COPIES FURNISHED:

   
   

   Dorothy Faircloth Executive Director Board of Medicine

   Department of Professional Regulation Northwood Centre

   1940 North Monroe Street Tallahassee, FL 32399-0792

   
   

   Jack McRay, Esquire General Counsel

   Department of Professional Regulation Northwood Centre

   1940 North Monroe Street Tallahassee, FL 32399-0792

   
   

   Samantha Boge, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, FL 32302

   
   

   Allen Grossman, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, FL 32399-1050

   
   

   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.

   
   

   ================================================================= AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

   BOARD OF MEDICINE

   
   

   WILLIAM D. PLUMMER, M.D.,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO. 92-2060

   DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF MEDICINE,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came before the Board of Medicine (Board) pursuant to Section l20.57(1)(b)10, Florida Statutes, on June 4, 1993, in West Palm Beach, Florida, for consideration of the Hearing Officer's Recommended Order and the Exceptions to the Recommended Order filed by the Respondent and Responded to by the Petitioner (copies of which are attached hereto as Exhibits A, B and C respectively) in the above styled cause. Petitioner, William D. Plummer, was present and represented by Samantha Boge, Esquire. Respondent, the Board of Medicine, was represented by Allen R. Grossman, Esquire.

   
   

   Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

   
   

   Preliminary Statement

   
   

   The preliminary statement set forth in the Recommended Order is approved and adopted and incorporated herein, with the exception of she second paragraph, which is rejected. The second paragraph provides:

   
   

   By prehearing stipulation, the parties agreed that Petitioner had met all require- ments for licensure by endorsement with the following exceptions only:

   1. Whether or not Dr. Plummer made fraudulent misrepresentations in his application for licensure in Florida.

   2. Whether or not Dr. Plummer is able to practice medicine with reasonable skill and safety to patients.

(HO Exhibit 1).

2. This paragraph is rejected because it is not supported by the evidence of record. The plain meaning of the written stipulation of the parties set out those issues which remained to be litigated and did not reflect an agreement that the Petitioner had met all other requirements for licensure.

FINDINGS OF FACT

1. The Board rejects those findings of fact as set forth in the Recommended Order, paragraphs 11 and 21, to wit:

   
   

   11. However, Petitioners's interpretation of Florida's questions and his answers thereto do not constitute attempting to obtain a license to practice medicine by fraudulent misrepresentation or concealment

   of a material fact for the following reasons:

   21. This discrepancy was neither "fraud" nor

   "concealment," as those terms are generally understood.

   
   

2. These findings are rejected because they are legal conclusions of the Hearing Officer, not findings of fact based upon competent, substantial evidence of record. This is an important distinction because the Board's evaluation of the Hearing Officer's findings of fact is significantly different than the Board's determination of the legal conclusion to be reached based upon such facts.

   
   

3. There is competent, substantial evidence to support the remaining findings of facts.

   
   

4. The remaining findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The Board rejects the conclusion of law set forth in the Recommended Order, paragraph 54, to wit:

   
   

   54. Essentially, the Board contended that Petitioner is not entitled to licensure by endorsement for three reasons: that he is not able to practice medicine with reason- able skill and safety to patients because of alcoholism; that he made fraudulent misrepresentations in his Florida application and during the licensure process, and that his license to practice medicine was denied by Pennsylvania in 1985.

   
   

3. This is rejected because the evidence of record, the order of the Board denying licensure set out that Petitioner's inability to practice medicine with reasonable skill and safety, was not limited solely to alcoholism, rather that order provided:

   
   

   2. The Board of Medicine reviewed and considered your application for licensure by endorsement on February 8, 1992, in Ft. Lauderdale, Florida and has determined that said licensure by endorsement be denied, stating as grounds therefore: that you have a history of alcohol abuse and unsuccessful treatment therefore, You have repeatedly relapsed after inpatient treatment and you have had your medical practice affected by these problems. You were suspended from your internal medicine residency program. You have been denied a license to practice

   medicine in Pennsylvania and you made material misrepresentations on your application for licensure. Furthermore, you exhibited an obvious lack of candor and truthfulness in

   your testimony before the Credentials Committee of the Board. These issues reflect negatively on your ability to practice medicine with skill and safety and upon your character...

   
   

4. The Board rejects the conclusion of law set out in the Recommended Order, paragraph 55, which provides that, absent proof of Petitioner's intent to deceive or mislead the Board, a violation Section 458.331(1)(gg),[now 458.331(1)(hh)), Florida Statutes, cannot be established. This is an incorrect conclusion because, unlike Section 458.331(1)(a), Florida Statutes, which requires a showing of fraud, Section 458.331(1)(gg) does not require a showing of fraudulent intent to impose disciplinary action for misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure.

   
   

5. The Board rejects the conclusion of law set out in the Recommended Order, paragraph 55, to wit:

   
   

   Also, upon the foregoing matters, there is no evidence of a current absence of good moral character.

   
   

6. This conclusion is rejected because it misstates the evidence of record which does include evidence of recent misrepresentations and concealment of material facts during the application process.

   
   

7. The Board rejects the conclusion of law set out in the Recommended Order, paragraph 57, that the denial of licensure was arbitrary and capricious. This conclusion is rejected because, denial of licensure, under the facts and circumstances of this case, is consistent with both law and the policy of the Board.

   
   

8. The Board rejects the conclusions of law set out in the Recommended Order, paragraph 58, which characterizes the case as one pertaining only to a recovering alcoholic whose present condition is not in doubt and worthy of licensure.

   
   

9. The Board rejects the conclusion of law set out in the Recommended Order, paragraph 59, because it cited only probation as the Board action available when an applicant fails to meet the requirements of licensure, whereas, there are three statutory bases for action available to the Board, to wit:

   
   

   Section 458.313(8), Florida Statutes, provides the following three alternatives available should the Board determine that

   an applicant failed to meet the requirements for licensure:

   1. Refusal to certify to the department an application for licensure, certification, or registration.

   2. Certification to the department of an application for licensure, certification, or registration with restrictions on the scope of practice of the licensee; or

   3. Certification to the department of an

      application for licensure, certification, or registration with placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including but not limited to, requiring the physician to submit to reexamination, or

      work under the supervision of another physician.

      
      

10. The Board accepts only that portion of the conclusion of law set out in the Recommended Order, paragraph 60, which provides that the Board may impose any of the conditions set out in Section 458.331(8), Florida Statutes based upon Petitioner being denied a Pennsylvania graduate medical training license in 1985. The Board rejects the remainder of the conclusions of law set out in this paragraph as they do not completely state all options available to the Board under Section 458.331(8)(a-c), Florida Statutes nor do they reflect present Board policy.

    
    

11. Having reviewed and acted upon the recommended order, the Board makes the following conclusion of law. Competent and substantial evidence was presented that Petitioner made a material misrepresentation and concealment of a material fact in his application for licensure by endorsement, in violation of Section 458.331(1)(gg)(now 458.331(1)(hh)], Florida Statutes. A violation of said statute does not require proof of fraudulent intent on the part of the applicant. Denial of licensure is provided for as one of several options available to the Board in those cases in which the applicant has failed to meet the requirements for licensure. It is not arbitrary and capricious to impose such under the circumstances of this case, to include the fact that the Petitioner had previously been put on notice by the Pennsylvania licensing authority of the importance of complete truth in medical licensure applicants.

Rulings on Respondent's Exceptions

1. The Respondent filed written Exceptions to the Recommended Order in this case and the Petitioner filed written Responses to the Exceptions. The Petitioner and the Respondent provided supplemental oral argument.

   
   

2. The Respondent's Exceptions were granted for reasons stated in the written exceptions and in oral argument.

RECOMMENDATION

The Recommendation of certifying the Petitioner for licensure is rejected. Upon a complete review of the record in this case, the Board determines that the recommendation by the Hearing Officer is rejected for the reasons stated above.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that the Respondent's

application for licensure by endorsement be denied.

This order takes effect upon filing with the Clerk of the Department of Business and Professional Regulation.

DONE AND ORDERED this 2nd day of August, 1993.

Board of Medicine

James N. Burt, M.D. Chairman

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Samantha Boge, Attorney for Petitioner, at Stowall, Anton & Kraemer, P.O. Box 11059, Tallahassee, Florida 32302, by US Mail, this * day of ,* 1993

* DOROTHY FAIRCLOTH

Executive Director Board of Medicine

*FILED WITH DOAH UNDATED AND UNSIGNED.

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to William D. Plummer, 29 Parkway Dr., Palm Coast, Florida 32137 and 323 C. Hayden St. Sayre, PA 18840 and Samantha Boge, Esquire,

P.O. Box 10059, Tallahassee, Fl 32302 at or before 5:00 p.m., this 6th day of August, 1993.

DOROTHY J. FAIRCLOTH

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Samantha Boge, Esquire, P.O. Box 11059, Tallahassee, Florida 32302, at or before 5:00 p.m., this 13th day of October, 1993.

MARM HARRIS

Docket for Case No: 92-002060

Orders for Case No: 92-002060