STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE No. 92-6556

)

DONALD LEE RIFE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on February 19, 1993 at Tampa, Florida.

APPEARANCES

For Petitioner: Larry G. McPherson, Jr., Esquire

Chief Medical Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399 0792

For Respondent: Paul B. Johnson, Esquire

JOHNSON & JOHNSON

100 Ashley Drive - Ste. 1450 Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether Respondent violated Section 458.331(1)(b), Florida Statutes, as alleged in Administrative Complaint.

PRELIMINARY STATEMENT

By Administrative Complaint filed October 14, 1992 the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Donald Lee Rife as a medical doctor. As grounds therefor it is alleged that Respondent's license to practice medicine in Vermont was revoked by the Vermont Board of Medicine, and that this constitutes a violation of Section 458.331(1)(b), Florida Statutes. Respondent requested a hearing to challenge this allegation and these proceedings followed.

Respondent's motion to continue this case until the appeal of the Board of Medical Practice order revoking his license to practice medicine in Vermont is complete was denied as was Respondent's motion to dismiss the Administrative Complaint on grounds that the events leading to the revocation of Respondent's license occurred before Respondent was licensed in Florida.

There is no real dispute regarding the operative facts here involved. The parties submitted a Joint Prehearing Stipulation in which findings 1-3 below were stipulated as facts. Thereafter eight exhibits were offered into evidence. Ruling on the admissibility of Exhibit 6 was reserved at the hearing until the deposition testimony had been read by the Hearing Officer. Exhibit 6 is a copy of an Order entered by the Superior Court, Washington County, Vermont, In re: Stephen O. Dell, M.D., which was affirmed without opinion by the Supreme Court of Vermont in Supreme Court Docket No. 92-227, October Term, 1992. Since the objection related to the legal opinion and not to the authenticity of the document, Exhibit 6 is now admitted. All other exhibits were admitted at hearing. Respondent's objection to the admissibility of Exhibit 5, a Final Order entered by the Board of Medicine on February 18, 1991 in the case of DPR

1. Rife was overruled. Proposed findings submitted by the parties are accepted unless rejected in the Appendix attached hereto. Those proposed findings neither included in Hearing Officer's findings nor rejected in the Appendix were deemed unnecessary to the conclusions reached.

   
   

   Having fully considered the evidence presented, I submit the following: FINDINGS OF FACT

   1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapters 455 and 458, Florida Statutes.

      
      

   2. Respondent is and has been at all times material hereto a licensed physician in the State of Florida having been issued license number ME 0042228 on June 6, 1983. Respondent's last known address is Post Office Box 25781, Tampa, Florida 33622.

      
      

   3. Respondent is a Diplomate American Board of Psychiatry and Neurology-- Adult Neuropsychiatry and Child Psychiatry. (Exhibit 8)

      
      

   4. The Vermont Board of Medicine entered an Order August 6, 1982, revoking Respondent's medical license in Vermont based on a finding that Respondent engaged in sexual activity with patients.

      
      

   5. The facts alleged and found by the Vermont Board of Medical Practices occurred during the period between 1969 and 1978 and involved sexual misconduct with four teenaged and pre-teenaged clients who were referred to Respondent for psychiatric treatment.

      
      

   6. As found by the Vermont Board of Medical Practices in the Order entered June 3, 1992:

      
      

      The facts of this case show a pattern of sexual predatory behavior by respondent. In the guise of healer, counselor, and responsible adult, respondent repeatedly took advantage of his young patients. These four patients were especially vulnerable, because they were all experiencing stressful emotional and social difficulties when they were referred to respondent for treatment.

   7. The motion to have the Vermont Board's order revoking Respondent's license to practice medicine in Vermont stayed was denied by the Board. Appeals have been taken to the Superior Court and to the Appellate Officer of the Office of Professional Regulation. The Superior Court has stayed proceedings pending the completion of the administrative appeal. Action is pending on the administrative appeal.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   9. Respondent is here charged with violating Section 458.331(1)(b), Florida Statutes which provides in pertinent part the following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:

      
      

      * * *

      1. Having a license or 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.

         
         

   10. Subsection (2) provides:

       
       

       When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

       * * *

       1. Revocation or suspension of a license.

       2. Restriction of practice.

       3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of physician on probation....

          
          

   11. Respondent argues that these proceedings are premature because the order of the Vermont Board is not a final order. That order is currently in force in Vermont as it has not been stayed. Further had an appeal from that order not been taken the order doubtless would have become final and irrevocable. Accordingly, this argument is without merit.

       
       

   12. Respondent further argues that the acts leading to the revocation of his Vermont license occurred prior to his licensure in Florida and therefore the Florida Board of Medicine is without jurisdiction to take disciplinary action against him based on those facts. Taylor v. Department of Professional Regulation, 534 So.2d 782 (Fla. 1 DCA 1988). While this is an accurate statement of the law as announced in Taylor, supra, Respondent here is not being

       charged with the offenses of which he was found guilty by the Vermont Board. He is merely being charged with having his license to practice medicine revoked in another jurisdiction.

       
       

   13. Although testimony was presented regarding the applicable law in Vermont respecting Respondent's appellate rights in that jurisdiction, this is not relevant to these proceedings. The former law, 26 VSA 1363 which provided that an appeal from a Board decision could be taken the superior court in a de novo hearing was revoked when a administrative appellate process was established. Under the new appellate procedure the Board's decision can be appealed to an administrative Appellate Officer in the Department of Professional Regulation, from there to the Superior Court on the record (not de novo) and finally to the Supreme Court. Respondent and Respondent's Vermont attorney's opinion that he is still entitled to a de novo hearing in the Superior Court because the charges by the Vermont Board were filed while 26 VSA 1363 was still in effect is contrary to the Superior Court Order (Exhibit 6) which was affirmed without opinion by the Vermont Supreme Court.

       
       

   14. In these proceedings Petitioner has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d

       292 (Fla. 1987). Petitioner has here sustained this burden.

       
       

   15. Disciplinary guidelines in Rule 21M-20.001, Florida Administrative Code, provides that for action taken against a license by another jurisdiction the recommended range of penalties is:

       
       

       1. From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken and an administrative fine ranging from $250 to

          $5000.

          
          

   16. The charges preferred against Respondent in Vermont allege a violation of Sections 458.331(1)(j) (exercising influence to engage patients in sex) and 458.331(1)(t) (malpractice), among others. Recommended penalties for these violations range from revocation of license to fine.

RECOMMENDATION

It is RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for a period of five years or completion of his appellate review in Vermont whichever first occurs; and, unless the revocation of Respondent's license to practice medicine in Vermont is set aside, then, upon completion of appellate review in Vermont, Respondent's license number ME 0042228 be revoked and that Respondent be assessed an administrative fine of $2,000.00.

DONE and ORDERED this 17th day of March, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 17th day of March, 1993.

APPENDIX

Petitioner's proposed findings are accepted except Findings 12-18, which are rejected as fact, accepted as Conclusions of Law.

Respondent's proposed findings are accepted except:

1. Accepted as a recital of the deposition testimony of the witness.

   
   

2. Second sentence rejected. However, in making the recommendation for punishment in this case the Hearing Officer did not consider Exhibit 5.

   
   

3. Rejected. Exhibit 6 was accepted as an Order of the Superior Court of Vermont expressing the law in Vermont, which order was approved by the Supreme Court of Vermont without opinion.

   
   

4. The Hearing Officer made no comparison of the curriculum vitae in Exhibit 1 and Exhibit 8.

   
   

5. No independent review of Mr. Langrocks' rating in Martindale-Hubbell was done by this Hearing Officer. With respect to Mr. Langrock's testimony of the law in Vermont respecting the administrative appeal, his testimony conflicts with the following generally accepted principles:

   
   

   1. The Superior Court will reject the appeal until Respondent has exhausted his administrative remedies;

   2. The revocation of 26 VSA 1363 and its replacement by 3 VSA 130 is in the nature of procedural change rather than a substantive change in the law. If so, the general rule of law is that procedural changes take effect upon enactment and the former statute which provided for a de novo appeal to the Superior

      Court is no longer available to Respondent, even though his right to appeal occurred prior to the change in the law.

   3. Once Respondent has exhausted his administrative remedies he can appeal that decision (if adverse) under 3 VSA 130.

COPIES FURNISHED:

Larry G. McPherson, Esquire Chief Medical Attorney Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399 0700

Paul B. Johnson, Esquire JOHNSON & JOHNSON

Post Office Box 3416 Tampa, Florida 33601

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399 0700

Dorothy Faircloth, Executive Director Florida Board of Medicine

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399 0750

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

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

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NUMBER: 92-10263

vs. DOAH CASE NUMBER: 92-6556

LICENSE NUMBER: ME 0042228

DONALD LEE RIFE, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on June 6, 1993, in West Palm Beach, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) and the Motions for Final Order of the parties in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was not present, but was represented by Paul B. Johnson, Attorney at Law.

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

RULINGS ON EXCEPTIONS

1. Respondent's Exception Number 1 is rejected based on the written response by Petitioner.

   
   

2. Respondents Exception Number 2 is rejected for the following reasons:

   
   

   1. This subpart of the Exception lacks the specificity required by Rule 21M-18.004(2), Florida Administrative Code.

      
      

   2. This subpart of the Exception lacks the specificity required by Rule 21M-18.004(2), Florida Administrative Cede.

      
      

   3. This subpart of the Exception is rejected based on the written response of Petitioner; there is competent substantial evidence to support the Hearing Officers finding.

3. Respondent's Exception Number 3 is rejected based on the written response by Petitioner. The legal issue as to the appropriate burden of proof for the Vermont proceeding is appropriately resolved in Vermont, not here.

   
   

4. Respondent's Exception Number 4 is rejected based on the written response by Petitioner.

   
   

5. Respondent's Exception Number 5 is rejected based on the written response by Petitioner.

   
   

6. Respondent's Exception Number 6 is rejected based on the written response by Petitioner and the advice stated on the record by Board counsel. The action taken by the Board in Vermont is sufficient to support the finding that action was taken against Respondent's license in Vermont by the licensing authority of the state. To hold otherwise would allow the citizens of Florida to be unprotected from the practice of medicine by a doctor whose past conduct toward patients has been described as predatory. If the revocation by the Vermont Board is set aside by a court, then this action by Florida can be and will be revisited in light of that occurrence.

   
   

7. Respondent's Exception Number 7 is rejected based on the written response by Petitioner and the advice stated on the record by Board counsel. The cases cited by Respondent are not applicable to this proceeding because the action on which the Florida charges are based occurred after Respondent was licensed in Florida. Even though the conduct on which the Vermont revocation

   was based occurred prior to Respondent's licensure in Florida, the revocation by Vermont did not. The Florida Board of Medicine could not have denied Respondent's license application in 1983 based on the revocation of his Vermont license because said action had not occurred prior to issuance of his Florida license.

   
   

8. Respondent's Exception Number 8 is rejected based on the written response by Petitioner.

   
   

9. Respondent's Exception Number 9 is rejected based on the written response by Petitioner and the advice stated on the record by Board counsel. The relevant issue is whether Florida proved the allegations charged, (i.e., action against Respondent's license) by clear and convincing evidence. Whether Vermont used the appropriate burden of proof and whether that burden was met is to be resolved by the Vermont courts. In proceeding under Section 458.331(1)(b), Florida Statutes, the Department is not required to retry the underlying case.

   
   

10. Respondent's Exception Number 10 is rejected based on the written response by Petitioner.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

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 conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of

law.

PENALTY

Upon a complete review of the record in this case, the Board determines

that the penalty recommended by the Hearing Officer be accepted in substance, but rephrased. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent shall pay an administrative fine in the amount of $2000 to the Board of Medicine, Department of Professional Regulation, within 30 days of the date this Final Order is filed.

   
   

2. Respondent's license to practice medicine in the State of Florida is REVOKED. However, jurisdiction is retained for the purpose of reconsidering this action in the event the action against Respondents license to practice medicine in Vermont is set aside.

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

DONE AND ORDERED this 9th day of June, 1993.

BOARD OF MEDICINE

JAMES N. BURT, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Donald Lee Rife, M.D., Post Office Box 25781, Tampa, Florida 33622 and 2203 North Lois Avenue, Suite 1100, Tampa, Florida 33607 and Paul B. Johnson, Attorney at Law, Johnson and Johnson, 100 Ashley Drive, Suite 1450, Tampa, Florida 33601, by U.S. Mail to K. N. Ayers, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 11th day of June, 1993.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A 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 DEPARTMENT OF PROFESSIONAL REGULATION 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 THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-006556

Orders for Case No: 92-006556