STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

vs. ) CASE NO. 93-2704

) 94-1129

DOUGLAS EARL NALLS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case by video teleconference on November 14, 1994, in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Arthur B. Skafidas, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent: Joseph S. Rosenbaum, Esquire

Anthony Vitale, Esquire

2400 South Dixie Highway, Suite 105

Miami, Florida 33133 STATEMENT OF THE ISSUES

Whether Respondent is guilty of violating Sections 458.331(1)(b), 458.331(1)(ll), 458.331(1)(x) and 458.331(1)(c), Florida Statutes.

PRELIMINARY STATEMENT

On April 12, 1993, Petitioner, the Department of Professional Regulation (now the Agency for Health Care Administration), Board of Medicine, filed an administrative complaint against Respondent, Douglas Earl Nalls, M.D., alleging that he violated Sections 458.331(1)(b),(x) and (ll), Florida Statutes. On January 24, 1994, Petitioner filed another administrative complaint against Respondent, alleging that Respondent violated Section 458.331(1)(c), Florida Statutes. The cases were forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer. The cases were consolidated for final hearing by order dated March 21, 1994. The final hearing was scheduled for May 16, 1994. Respondent requested a continuance and the hearing was rescheduled for August 8, 1994. By order dated June 1, 1994, Petitioner was given leave to amend the administrative complaint. On July 21, 1994, Respondent filed an Agreed Motion for Continuance. The hearing was rescheduled for November 14, 1994.

At the final hearing, Petitioner called Barbara Kemp as a witness.

Petitioner's Exhibits 1, 2, 4-7, 9, and 10 were admitted in evidence. Respondent called Dr. Bruce Bernstein and Leonard Haber as witnesses. Respondent's Exhibits 1 and 3 were admitted in evidence.

At the final hearing the parties agreed to file their proposed recommended orders within ten days from the date the transcript was filed. The transcript was filed on December 1, 1994. On December 8, 1994, Respondent filed a request for extension of time to filed proposed recommended orders. The request was granted and the time for filing proposed recommended orders was extended to December 22, 1994.

FINDINGS OF FACT

1. On or about July 7, 1981, Respondent, Douglas Earl Nalls, M.D. (Nalls), submitted an application for licensure by endorsement to the Petitioner, Board of Medicine (Board).

   
   

2. As part of his application for licensure, Nalls was required to disclose to the Board any criminal conviction, any discipline imposed against his license to practice medicine, information related to military service, and other matters specified in the license application.

   
   

3. Nalls answered in the negative to questions regarding any criminal convictions and any discipline by other Boards or entities, and Nalls did not reveal any military service.

   
   

4. Nalls' Florida medical license was originally issued on or about December 14, 1981, by endorsement.

   
   

5. Nalls' license to practice medicine in Florida became void and of no force and effect on or about October 28, 1985, because Nalls failed to demonstrate to the Board that he had continuously practiced medicine in Florida for a minimum of one year during the first three years after issuance of the license by endorsement as required by Section 458.313(3), Florida Statutes (1981). The Board was unaware of Nalls' military status at the time the license was deemed to be void and of no force and effect.

   
   

6. On or about July 1, 1987, Nalls was found guilty by jury trial of two counts of child abuse and two counts of third degree sexual offense in the State of Maryland. The charges related to Nalls' thirteen year old stepdaughter for whom Nalls had the care, custody or responsibility for supervising.

   
   

7. On or about August 27, 1987, Nalls was sentenced to three years incarceration, of which all but four months were suspended.

   
   

8. On or about July 9, 1987, Nalls submitted an application for licensure to the District of Columbia's Board of Medicine. Nalls did not reveal his arrest or conviction to the District of Columbia's Board of Medicine.

   
   

9. On or about September 7, 1989, Nalls' license to practice medicine in the District of Columbia was revoked.

   
   

10. In early 1991, prior to February 1, 1991, Nalls contacted the Board to reinstate his license by endorsement.

11. Nalls was required to submit minimal information to the Board related to his request for reinstatement. He presented documentation of his military service and discharge. He was not questioned concerning prior convictions or revocations of his medical license in another jurisdiction.

    
    

12. On or about February 7, 1991, Nalls was notified that the Board approved his request for reinstatement. Nalls became eligible to practice medicine in Florida on or about May 28, 1991, when his request for reinstatement was completed.

    
    

13. On or about April 1, 1991, Nalls was hired as a staff physician at the Workers' Compensation Medical Center located in Pompano Beach, Florida.

    
    

14. On or about November 25, 1991, the Board received Nalls' licensure renewal for the license renewal period for January 1, 1992 through January 31, 1994. Nalls listed his business address as Workers' Compensation Medical Center, 150 South Andrews Avenue, Pompano Beach Florida 33069. Twelfth Avenue is also known as South Andrews Avenue.

    
    

15. Nalls' last date of employment with the Workers' Compensation Medical Center was April 14, 1992.

    
    

16. After April 14, 1992, the Board sent an inquiry to Nalls at the address listed for the Workers' Compensation Medical Center. The administrator at the Workers' Compensation Medical Center sent a handwritten note to the Board stating that Nalls no longer worked at Workers' Compensation Medical Center.

    
    

17. On January 24, 1994, Nalls advised the Board that he wished to change his address since the time of his last renewal and listed his new primary place of practice as The Ideal Clinic, 155 N.W. 167th Street, Suite 202, North Miami Beach, Florida 33169.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

19. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license to practice medicine of any physician found guilty of the acts enumerated in Section 458.331(1), Florida Statutes.

    
    

20. Petitioner has alleged that Respondent has violated Sections 458.331(1)(b), (c), (x) and (ll), Florida Statutes. Petitioner has the burden of establishing these violations by clear and convincing evidence. Robertson v. Department of Professional Regulation, 574 So.2d 153 (Fla. 1st DCA 1990) and Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

21. Sections 458.331(1)(b), (c), (x) and (ll), Florida Statutes, provide:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       1. 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. The licensing authority's acceptance of a physician's relinquishment of a license, stipulation, consent order, or other settlement, offered in response to or

          in anticipation of the filing of administrative charges against the physician's license, shall be construed as action against the physician's license.

       2. Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction

          which directly relates to the practice of medicine or to the ability to practice medicine.

          * * *

          (x) Violating any provision of this chapter, a rule of the board or department, or lawful order of the board or department previously entered in a disciplinary hearing or failing

          to comply with a lawfully issued subpoena of the department.

          (ll) Failing to report to the board, in writing, within 30 days, if action as defined in paragraph (b) has been taken against one's license to practice medicine in another state, territory, or country.

          
          

22. Nalls argues that because his Florida medical license was null and void at the time that he was convicted of two counts of child abuse and two counts of third degree sexual offense and at the time that his medical license was revoked by the District of Columbia that he is not subject to discipline for those offenses. Section 458.331(2), Florida Statutes, provides that certain penalties, among which are revocation and an administrative fine, may be imposed "[w]hen 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 . . ." 1/ Thus, it is clear that the legislature intended that conduct which occurred when a licensee did not hold a Florida medical license can be grounds for disciplinary action. This interpretation is particularly persuasive under the circumstances of this case. In this case, the Board was unaware of the criminal convictions and the revocation by the District of Columbia when the Board approved the reinstatement of Respondent's license. Additionally, had Nalls notified the Board that he was on active military duty his license would not have been declared void and of no force and effect for failure to practice medicine in Florida for a minimum for one continuous year within the three years following the issuance of his license. Section 455.02, Florida Statutes, required the Board to keep Nalls' license in good standing without his registering, paying dues or fees, or performing any other act on his part as long as he was a member of the Armed Forces of the United States on active duty, and for a period of six months after his discharge.

23. Nalls' medical license was revoked by the District of Columbia. Thus, the Board has established by clear and convincing evidence that Nalls violated Section 458.331(1)(b), Florida Statutes.

    
    

24. Nalls' conviction of two counts of child abuse and two counts of third degree sexual offense directly relate to the practice of medicine or to Nalls' ability to practice medicine. In Rush v. Department of Professional Regulation,

    448 So.2d 26 (Fla. 1st DCA 1984), the court held that a conviction of conspiracy to possess and import marijuana directly related to the practice of podiatry or to the ability to practice podiatry. The court stated:

    
    

    The actions of Dr. Rush, which culminated in his conviction, constitute a breach of that trust and confidence which the people through

    the Legislature, have placed in him. Dr. Rush's conduct shows a lack of honesty, integrity, and jugment, and an unwillingness to abide by the Laws of the State of Florida, which cannot be tolerated of a professional licensed to dispense dangerous drugs.

    * * *

    By confining the convictions upon which disciplinary action may be based to those directly related to

    the practice of podiatry, the Legislature has not limited the grounds for disciplinary action to only those crimes which relate to the technical ability to practice podiatry or to those which arise out of misconduct in the office setting.

    A conviction for a crime, such as importing marijuana, which presents a danger to the public welfare will be adequate basis for disciplinary action to be taken against a practictioner.

    
    

    Id. at 27, 28. Accord, Greenwald v. Department of Professional Regulation, 501 So.2d 740, (Fla. 3d DCA 1987), rev'd denied, 511 So.2d 988 (Fla. 1987), cert.

    denied, 108 S.Ct. 502, 484 U.S. 986, 98 L.Ed.2d 501 (1987), ("[Doctor's]

    undertaking to end a bitter marriage dissolution problem by soliciting someone to murder his ex-wife evidences warped judgment and disregard for human life - the antithesis of which is required and expected of physicians.")

    
    

25. Child abuse of a minor while having care, custody or responsibility of said minor and sexual offenses are crimes which evidence a lack of honesty, integrity and judgement and an unwillingness to abide by the law. Thus, the Board has established by clear and convincing evidence that Nalls violated Section 458.331(1)(c), Florida Statutes.

    
    

26. Section 485.319(5), Florida Statutes provides:

    
    

    The licensee must have on file with the department the address of his primary place

    of practice within the 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.

27. The Board has failed to establish that Nalls had an address for a new primary place of practice prior to notifying the Board on January 4, 1994 that his new primary place of practice had changed to the Ideal Clinic in North Miami Beach, Florida. The Board presented no evidence that Nalls began working for Ideal Clinic prior to January 4, 1994. In its proposed recommended order, the Board relies on the curriculum vitae of Nalls; however, the document was not entered in evidence nor was there any testimony concerning the document.

    
    

28. The Board conceded in its proposed recommended order that it failed to present evidence that Nalls violated Section 458.331(1)(ll), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in regard to DOAH Case No. 93-

2704 finding Douglas Earl Nalls, M.D. guilty of violating Section 458.331(1)(b), Florida Statutes, dismissing the counts relating to violation of Sections 458.331(1)(x) and (ll), Florida Statutes, imposing a $5,000 fine, and revoking his license to practice medicine in the State of Florida.

In regard to DOAH Case No. 94-1129, it is RECOMMENDED that a final order be entered, finding Douglas Earl Nalls, M.D. guilty of violating Section 458.331(1)(c), Florida Statutes, imposing a $5,000 fine and revoking his license to practice medicine in the State of Florida.

DONE AND ENTERED this 3rd day of February, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 3rd day of February, 1995.

ENDNOTE

1/ In Taylor v. Department of Professional Regulation, 534 So.2d 782, (Fla. 1st DCA 1988), the court held that the Board of Medicine did not have jurisdiction to discipline a licensed physician for acts which were committed prior to the issuance of the license, stating that it could " discern no clear statement of legislative intent to provide for discipline of a physician for prelicensure misconduct." Id. at 784. In 1989, the legislature amended Section 458.331(2) and added the following language, "including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure.

APPENDIX TO RECOMMENDED ORDER

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-10: Accepted in substance.

2. Paragraphs 11-12: Rejected as unnecessary

3. Paragraphs 13-14: Accepted in substance.

4. Paragraphs 15-19: Rejected as subordinate to the facts actually found.

5. Paragraph 20: Accepted in substance.

6. Paragraph 21: Rejected as subordinate to the facts actually found.

7. Paragraphs 22-24: Accepted in substance.

8. Paragraph 25: Rejected as not supported by competent substantial evidence. The record does not reflect why the Board reinstated Respondent's license.

9. Paragraph 26: Rejected as constituting a conclusion of law.

10. Paragraphs 27-28: Accepted in substance.

11. Paragraph 29: Rejected as not supported by competent substantial evidence.

12. Paragraph 30: Accepted in substance.

13. Paragraph 31: Rejected as constituting a conclusion of law.

14. Paragraph 32: Rejected as subordinate to the facts actually found.

15. Paragraph 33: Accepted in substance.

16. Paragraphs 34-35: Rejected as constituting conclusions of law.

17. Paragraphs 36-42: Accepted in substance.

18. Paragraph 43: Rejected as subordinate to the facts actually found.

19. Paragraphs 44-45: Accepted in substance.

20. Paragraphs 46-47: Rejected as not supported by competent substantial evidence.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-6: Accepted in substance.

1. Paragraph 7: Rejected as subordinate to the facts actually found.

2. Paragraph 8: Accepted in substance.

3. Paragraphs 9-10: Rejected as subordinate to the facts actually found.

4. Paragraph 11: Accepted in substance.

5. Paragraph 12: Rejected as subordinate to the facts actually found.

6. Paragraph 13: Accepted in substance.

COPIES FURNISHED:

Arthur B. Skafidas, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Anthony Vitale, Esquire Joseph S. Rosenbaum, Esquire

2400 South Dixie Highway, Suite 105

Miami, Florida 33133

Gene Reibman, Esquire

600 Northeast Third Avenue

Fort Lauderdale, Florida 33304

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Tom Wallace, Assistant Director Agency for Health Care Administration

325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131

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 ten 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: 93-002704

Orders for Case No: 93-002704