STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY M. KATZ, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-2797

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on December 17, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Watson Lambert, Esquire

2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749

For Respondent: Michael A. Mone, Esquire

Gregory A. Chaires, Esquire Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner, Harry M. Katz, M.D., has demonstrated that he is capable of practicing medicine with reasonable skill and safety in the State of Florida, as required by Subsection 458.331(4), Florida Statutes (1991).

PRELIMINARY STATEMENT

This cause arose upon the filing by the Petitioner of a petition for reinstatement of his Florida license as a medical doctor which had been revoked by Final Order of the Respondent agency on February 14, 1966. The Board's order denying that petition for reinstatement was filed with the agency clerk on March 23, 1993. The basis for denial was that the petition for reinstatement allegedly did not contain any information which would warrant reinstatement of the Respondent's license. The Petitioner timely contested that denial by seeking a formal proceeding before the Division of Administrative Hearings and the matter was ultimately assigned to the undersigned Hearing Officer.

The cause came on for hearing as noticed. The Petitioner presented two witnesses and joint exhibits 1-15 were admitted into evidence. The Petitioner's exhibits A, B and C were admitted into evidence, and the Respondent's exhibit 1 was admitted into evidence. The Respondent presented no witnesses on its own behalf.

Subsequent to the proceeding, the parties had the proceedings transcribed and agreed upon an extended briefing schedule, with one additional agreed-upon extension thereof, concomitantly waiving the thirty-day requirement for rendition of a Recommended Order. The parties submitted proposed findings of fact to the Hearing Officer, which have been addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, Harry M. Katz, M.D., is a medical doctor. His address is P.O. Box 192, Cedar Hill, Missouri 63016. He maintains an active family practice in the area of that location and is licensed by the agency charged with regulating and licensing medical doctors in the State of Missouri ("Missouri Board"). The Petitioner is seeking reinstatement of his medical doctor's license revoked by the Florida Board's Final Order of February 14, 1966. The Respondent is the Board of Medicine of the Department of Business and Professional Regulation located at 1940 North Monroe Street, Tallahassee, Florida. It has denied the Petitioner's reinstatement of his Florida medical doctor's license, which initial agency action resulted in this formal proceeding.

   
   

2. The Petitioner falls within that class of physicians whose licenses were revoked prior to June 1994 and under the legal authority cited herein, are entitled to petition for reinstatement. In order to have his license reinstated, the Petitioner must demonstrate that he is capable of practicing medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991).

   
   

3. On February 14, 1966, the State Board of Medical Examiners revoked the Petitioner's medical license for aiding, assisting and promoting an unlicensed physician to practice medicine and surgery at his hospital and by apparently failing to correctly perform physical examinations upon pilots for the Federal Aviation Administration (FAA), although he certified them as physically fit.

   
   

4. The Petitioner had employed a physician (surgeon) to practice at his hospital in Clearwater, Florida, including the performance of surgery. Sometime later, while that physician was in his employ, the Petitioner learned that his license had been either revoked or suspended. The Petitioner states that he promptly contacted the State Board of Medical Examiners to ascertain what his responsibility was in terms of employing such a physician, who was unlicensed, without the Petitioner's knowledge. The Petitioner states that he was informed by the Executive Director of the Medical Board that, in effect, he was not liable or subject to enforcement action by the Board for unknowingly allowing the unlicensed physician to practice under the circumstances described in the Petitioner's testimony in this case. Nevertheless, the Petitioner was ultimately prosecuted by the Medical Board for this activity, some of which occurred soon after he became aware of the doctor's license suspension, and also for allegedly certifying pilots as physically fit to the FAA when he had not actually done complete physical examinations. The Petitioner maintains that, indeed, he did do physical examinations on the four pilots, but testified that he did not do prostate examinations because it was not medically necessary, with

   pilots of such a young age to do such examinations. The Board found that he could not have done adequate physicals if the pilots were not required to disrobe. In any event, his medical license was revoked, which he freely admits.

   
   

5. Sometime in 1972, the Petitioner was prosecuted on a federal indictment, concerning charges in the nature of "medicare fraud". In essence, the Petitioner was charged with billing the medicare system for doctor/patient visits, for patients in his hospital, for each day the patients resided in his hospital, which apparently did not conform to medicare regulations. The Petitioner maintains that, indeed, he made the visits he billed for and believed that he was billing correctly for them. Nonetheless, he acknowledges that he was convicted and sentenced to two years in the federal prison facility at Eglin Air Force Base for those charges. Shortly after his confinement, the sentence was reduced to one year. The Petitioner appealed both the state license revocation and the federal criminal conviction, but both were upheld on appeal. The Petitioner testified concerning circumstances surrounding his federal trial involving purported inappropriate, ineffective and possible failure by the prosecution to reveal potential exculpatory evidence representation by his counsel, the effect of which he was unable to overturn in the appellate process. Be that as it may, as the Petitioner concedes, he did have his medical doctor's license revoked in 1966 and suffered a federal conviction in 1972.

   
   

6. The Petitioner's license to practice medicine in the Commonwealth of Kentucky was revoked based upon the Florida disciplinary action, and his Alabama license was voluntarily surrendered on the same basis. His application for licensure in South Dakota was denied based, in effect, upon the Florida disciplinary action, and his application for a State of Louisiana medical license was denied, as to full licensure, on the same basis. The State of Louisiana, however, did grant him a conditional license to practice medicine, which authorized him to practice as an employed physician at the Louisiana State Penitentiary at Angola. He served in that capacity and was promoted to medical director of the facility, providing medical care for some 4,000 inmates. Additionally, the Petitioner applied for licensure with the Kansas Board of Healing Arts, but elected not to pursue that licensure. The application was deemed withdrawn. The various state medical licensing boards revoked the Petitioner's pre-existing licensure or denied his applications for licensure based upon the Florida disciplinary action. Those other state boards took the position that he had to cure the licensure deficiency in Florida before he could be licensed in the other states. Those licensure actions were not based upon any independent disciplinary prosecutions in those states.

   
   

7. The Petitioner practiced as a physician III and physician IV in the Louisiana Department of Corrections at the penitentiary at Angola from sometime in 1973 until 1981. He became medical director of that facility. He performed a competent and honorable medical practice at that facility, as shown by unrefuted testimony in this proceeding and by the testimonial letters stipulated into evidence.

   
   

8. The Petitioner is currently licensed to practice medicine in the State of Missouri, where he has conducted a family practice since 1981. During his tenure in practice in Missouri, he had four malpractice suits filed against him. The first suit was settled for the sum of $1,200.00. The second and third suits were dismissed. The fourth suit resulted in a verdict in his favor. The verdict was later set aside, but the case was settled for the sum of $15,000.00. One of the malpractice suits resulted in the State Board of Registration for the Healing Arts in Missouri inquiring into his practice in that instance. His

   licensure status was not disciplined, but the Missouri Board required him to take the SPEX examination administered by the Federation of State Medical Boards. He took that examination and passed it with a score of 81.

   
   

9. The Petitioner is held in high esteem by his colleagues in the medical profession in Missouri, as shown by the testimonial letters in evidence and by a certificate of appreciation he was awarded by the St. Louis University Medical Center for his support and medical practice in conjunction with the St. Louis University Hospital's clinical services and teaching mission in conjunction with its operations as a teaching hospital. He has referred numerous patients to that facility and has received favorable comment on his evaluation, treatment of patients, and the good standards with which he has conducted his practice.

   
   

10. The Petitioner is licensed to prescribe narcotics without restriction. He is current with all of the required continuing medical education requirements and exceeds those requirements. He held a certificate of membership in good standing with the American Medical Association at least through July 1, 1993.

    He is a participant in good standing in the Medicare and Medicaid programs in the State of Missouri. He holds a valid certificate from the United States Department of Health and Human Services for clinical laboratory services. He is a participating physician in good standing with the Medicare and Medicaid programs and with the Blue Cross/Blue Shield program and is approved by the United States Department of Transportation to perform its required physicals.

    
    

11. During his tenure in Louisiana, he was a member in good standing in the Louisiana State Medical Society from approximately 1976 to 1980 and an officer of that association. He is a member in good standing of the American Medical Association as an AMA senior physician, the Southern Medical Association, since about 1982, and the American Correctional Association. Additionally, he has been board certified in the field of family practice by the American Board of Family Practice since 1976, in good standing.

    
    

12. The Petitioner has labored with a commendable dedication to good medical practice in amassing the above-found credits to his medical practice since suffering the above-referenced blemishes on his professional record so long ago, culminating in his demonstration to the Missouri State Board of his ability to safely engage in the practice of medicine by passing the SPEX examination with a high score. He has demonstrated that he is capable of and has practiced medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991).

    
    

13. The testimony of Georgia Leigh Katz, the Petitioner's daughter, speaks eloquently to the high level of character demonstrated by the Petitioner's single-minded dedication to his medical practice, even under his diminished professional standing for over 20 years. That demonstration of the perseverance and character with which he has approached his practice of medicine, under professionally and legally straitened circumstances during that time, certainly militates in favor of finding him rehabilitated from his prior disciplinary blemishes. Ms. Katz' testimony was unrefuted and is adopted herein by reference as true.

    
    

14. She thus established that, although not the fault of the medical board nor the federal court, the Petitioner's disciplinary action in Florida and the federal court conviction effectively destroyed his family. Shortly thereafter, he and his wife were divorced; and he, for much of the ensuing, approximate quarter century, has had to live apart from his children, in a distant state, while attempting, with his licensure impairment, to earn a relatively meager

    living and to support his family. He has made herculian efforts to support his family and himself with his medical practice, which could not reach its full potential because of the blemishes upon his professional record. Ms. Katz' testimony demonstrated, in a truly heart-rending way, the effect which this has had upon the Petitioner, his children and his former wife, their mother, in terms of the lack of financial security these circumstances imposed and, more importantly, the emotional hardship caused to the Petitioner and his family.

    
    

15. The Petitioner's dedication to his profession under these debilitating circumstances for these long years certainly demonstrates a rehabilitation of character in the Petitioner. This rehabilitation, coupled with the showing that he is competent and capable of practicing medicine with reasonable skill and safety, shows that his new licensure in Florida would pose no risk to its citizens but rather would be a benefit to them.

    
    

16. Counsel for the Board apparently avers that the Petitioner unrealistically claims that the Florida Board of Medicine, and its counterparts in other states, are engaged in some covert conspiracy to continue to deny him licensure, to impair his professional standing and medical practice. Questions by counsel, however, as well as those by the Hearing Officer, reveal that, although it is granted that the Petitioner has a great deal of emotional investment and anguish resulting from his multiple bouts with his licensure restrictions, that he really intended to explain in his testimony, in an imperfect way, that his licensure problems in the other states are interrelated with the root disciplinary action in Florida and that the Florida disciplinary action and the federal conviction, has had a legally operative effect with the medical practice acts in the other named states which cannot be cured until his licensure status in Florida can be restored. The Hearing Officer does not find from the testimony and evidence that the Petitioner has an unrealistic thought process leading to a perception on his part that there is a real conspiracy between the medical boards of the various named states or any of their personnel.

    
    

17. The Respondent also appears to take the position that the Petitioner cannot truly demonstrate rehabilitation unless he comes before the Board to express apology and contrition for his past conduct, and it decries his remonstrances concerning his disciplinary record. In fact, however, the Petitioner does not deny the past disciplinary actions, although he did seek to explain their circumstances in an exculpatory way.

    
    

18. On one level, it might seem a valid criticism that the Petitioner expresses no contrition or apology for his past conduct. On the other hand, he appears to genuinely believe in his innocence or at least his lack of moral turpitude concerning his disciplinary circumstances. This genuine belief on his part has motivated him to resist expressions of apology to the Florida Board, while exercising every available remedy to overturn the disciplinary action. This fact supports an inference that he is a man who has adhered to genuinely- held convictions, even through years of professional and personal adversity such a stand may have imposed upon him; rather than to "kowtow" to expediency and, by humble contrition, surrender those convictions simply to facilitate his re-entry into a lucrative profession in Florida. Given the preponderant evidence adduced by the Petitioner in this proceeding, such a lack of expressed apology or contrition evinces more of strong character than a lack of rehabilitation. In any event, the Petitioner has certainly already suffered sufficiently for any such lack of contrition.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1993).

    
    

20. The Petitioner is in that class of physicians whose licenses were revoked before 1981 and are subject to reinstatement under the rules of the Board of Medicine. See, Griffith v. Board of Medical Examiners, 454 So.2d 683 (Fla. 1st DCA 1984).

    
    

21. The order denying reinstatement has, should it become final, the effect of barring reinstatement without specified reasoning therefor. The order states that the basis for denial of the petition is that it "does not contain any information which would warrant reinstatement of the respondent's license." Denial of the petition for reinstatement based upon the reasoning proposed by the Board's order would have the effect of invalidly barring the Petitioner from holding a Florida medical license for not providing information which would warrant reinstatement when, in fact, the Board never imposed any conditions for reinstatement in the order of revocation in the first place. That order was entered under a statute which did not provide for permanent revocation. The Petitioner, moreover, as found above, is in a class of physicians who were revoked before 1981 and who are subject to reinstatement under the rules of the Board and the Griffith decision cited above. Since the statute under which the Petitioner was revoked does not provide for permanent revocation and since the Board in its revocation order did not impose any conditions for reinstatement, then Section 458.331(4), Florida Statutes (1991), must be looked to to find the standard by which his reinstatement can be considered and ruled upon. That statute provides as follows:

    
    

    (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 that 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.

    
    

    Thus, it can be seen that the first standard imposed in this statutory provision for reinstatement, involving the Board determining whether an applicant for reinstatement has complied with the terms and conditions set forth in the Final Order, cannot be applicable to this Petitioner because at the time he was revoked under the statute by which the Final Order provided for his revocation, the Board imposed no terms and conditions for him to comply with for reinstatement. Thus, the second standard in that statutory provision involving showing to the Board's satisfaction that the applicant for reinstatement was "capable of safely engaging in the practice of medicine", is the operative standard by which the Petitioner's application for reinstatement must be judged in this proceeding.

    
    

22. This is a de novo proceeding and the conclusion in the order denying reinstatement, that the petition did not provide any information which would warrant reinstatement, is irrelevant once a formal proceeding before the Division of Administrative Hearings is triggered. In that context, an examination must be made and a determination reached as to whether the Petitioner has demonstrated by preponderant evidence, before the Division of

    Administrative Hearings and the Hearing Officer, whether he is capable of practicing medicine with reasonable skill and safety. The preponderant evidence adduced in this proceeding, culminating in the above Findings of Fact, clearly shows that the Petitioner can safely engage in the practice of medicine with reasonable skill and safety. He has been safely engaging in the practice of medicine in Missouri since 1981; he is licensed to prescribe narcotics without restriction; he is more than current with continuing medical education requirements; he is a participant in good standing in the Medicare and Medicaid programs in Missouri; he holds a valid certificate from the United States Department of Health and Human Services for Clinical Laboratory Services; he is a participating physician in good standing in the Blue Cross/Blue Shield insurance program; he is approved by the United States Department of Transportation to perform required physicals; and quite importantly, he is held in high esteem by his colleagues and people he has served in his practice in both Louisiana and Missouri, as shown by unrefuted evidence in this record.

    Equally important, he has demonstrated to the satisfaction of the Missouri Board for the Healing Arts that he is capable of practicing medicine skillfully and safely by passing the SPEX examination required of him by that Board. He is board-certified in Family Practice.

    
    

23. The Hearing Officer has reviewed and considered the extensive decisional authority cited by the Petitioner in his Proposed Recommended Order, concerning the legal status of his petition for reinstatement, which demonstrates that he has a right to petition for reinstatement under the statute by which he was revoked and decisional authority interpreting that statutory scheme. The Hearing Officer has also considered the case authorities cited which demonstrate analogous or comparative factual situations in which the reinstatement of professional licenses has been ordered. The Hearing Officer finds this decisional authority persuasive and controlling in the Petitioner's circumstance.

    
    

24. In addition to clearly showing that he is capable of practicing medicine with reasonable skill and safety, the above Findings of Fact clearly show the strength of character that the public, and the State of Florida and, indeed, any state should applaud in a licensed physician. The Petitioner has labored with skill, dedication and perseverance in the blighted vineyard of a medical practice severely inhibited by the effect of the blemishes on his professional record and standing caused by the disciplinary actions imposed by the court and by the Florida Board so long ago. His perseverance in practicing medicine under these circumstances, in an effort to support himself and his broken family, when he might have turned his back on the medical profession and earned a better living in some other endeavor open to one of his skill and education, shows a love for and dedication to the fundamental principles of his profession we should find admirable in our licensed physicians.

    
    

25. The Petitioner has recalled, in his Proposed Recommended Order, one of the undersigned's Recommended Orders which enunciates an appropriate rationale for reinstatement of such a revoked professional licensee (in that case, a real estate broker). This analogous example, although it involved a much shorter "rehabilitation period", certainly embodies an appropriate rationale for reinstatement of the Petitioner, in addition to the reason for reinstatement

    proven in terms of his ability to practice medicine skillfully and safely. Thus, it was stated in Jerry Ross Smart v. Board of Real Estate, DPR, DOAH Case No. 81-271 (Recommended Order filed June 22, 1981), that:

    
    

    There is a punishment which goes unnoted in the records of any court and yet which is most uniformly and mercilessly inflicted on otherwise responsible men who, due to a transitory mistake, fall from a previously favored position in their community and their life and who thereafter must, with painful remembrance of the pleasurable station and

    pursuits they and their families once enjoyed, labor in their community in arduous, demeaning, obscure employment in order to merely provide their family with some modicum of security, without the opportunity to engage in the career at which they are most suited, were formerly successful and which brought both security and contentment to themselves and their families.

    Such a punishment is largely caused and rendered more bitter and prolonged by their community's unwillingness to forget their

    lone error and forgive them for it. The court which adjudged this man's guilt held his punishment to be at an end almost four years ago. It is time his punishment was truly ended.

    
    

26. The appellate court ultimately required reinstatement in the Smart case. The Petitioner's punishment imposed by the federal court was at an end some 21 years ago. The punishment imposed by the Medical Board was meted out to him some 28 years ago and yet he has doggedly and dedicatedly continued to practice his profession in the impaired manner allowed to him ever since, rather than give it up. Surely, he has partaken of the bitter fruits of that punishment long enough.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor, demeanor and credibility of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that the license to practice medicine in the State of Florida of Harry Meyer Katz, M.D., be reinstated.

DONE AND ENTERED this 28th day of June, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2797

Petitioner's Proposed Findings of Fact

1-25. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

Respondent's Proposed Findings of Fact

1-14. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

15. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto.

16-18. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto.

1. Accepted.

2. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

4. Rejected, as not entirely consonant with the preponderance evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter.

5. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not itself dispositive of the material issues presented.

6. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

7. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

COPIES FURNISHED:

Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C

Tallahassee, Florida 32308-3749

Michael A. Mone, Esquire Gregory A. Chaires, Esquire Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Dr. Marm Harris Executive Director Board of Medicine

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esq.

General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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.

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

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

HARRY M. KATZ,

Petitioner,

vs DOAH CASE NO. 93-2797

BOARD OF MEDICINE,

Respondent.

/

FINAL ORDER

THIS CAUSE came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on August 7, 1994, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order, and Exceptions to the Recommended Order filed by the Respondent (copies of which are attached hereto as Exhibits A and B) in the above styled cause. Petitioner, Harry M. Katz, ,was not present and represented by Paul Watson Lambert, Esquire. Respondent, the Board of Medicine, was represented by Gregory Chaires, Esquire, Assistant Attorney General.

The Board, upon oral motion of Respondent and without objection by Petitioner, granted Respondent's request to consider the untimely filed Exceptions to the Findings of Fact of the Respondent.

Upon review of the Recommended Order, written exceptions of the Respondent, 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 RESPONDENT'S EXCEPTIONS TO THE FINDINGS OF FACT

1. Respondent's Exception to paragraph 2 of the Findings of Fact of the Recommended Order that the correct date of statutory change regarding licensure revocation should be June 1983 is granted.

   
   

2. Respondent's Exception to paragraph 6 of the Findings of Fact of the Recommended Order, that there was no competent, substantial evidence to find that the Commonwealth of Kentucky's action in revoking Petitioner's medical license was based only upon the Florida disciplinary action, is granted. The

   record (Joint Exhibit 11) reflects that Kentucky's action was also based upon Petitioner's federal conviction for Medicare fraud. Accordingly, paragraph 6 is amended to read as follows:

   
   

   6. The Petitioner's license to practice medicine in the Commonwealth of Kentucky was revoked based upon the Florida disciplinary action and the Federal conviction for Medicare fraud, and his Alabama license was voluntarily surrendered on the same basis.

   
   

3. Respondent's Exception to paragraph 8 of the Findings of Fact of the Recommended Order that there was no competent, substantial evidence to support characterizing, Missouri, Board's action in requiring the Petitioner to take and pass the SPEX examination as "not disciplinary," is granted. Requiring a licensee to take the SPEX examination constitutes having a license "otherwise acted against," as provided for in Section 458.331(1)(b), Florida Statutes, and therefore makes the licensee subject to disciplinary action. Section 458.331(1)(b) is not limited only to "discipline" imposed by another licensing authority. Accordingly, paragraph 8 of the Findings of Fact is amended to reflect the following:

   
   

   8. His licensure was acted against by the Missouri Board when it required him to take the SPEX examination administered by the Federation of State Medical Boards.

   
   

4. The Respondent's Exception to paragraph 12 of the Findings of Fact of the Recommended Order that this paragraph stated a conclusion of law, not a finding of fact, is accepted. To the extent paragraph 12 is considered as a Conclusion of Law, for reasons stated in amended paragraph 18 of the Findings of Fact and amended paragraph 25 of the Conclusions of Law, paragraph 12 is rejected.

   
   

5. The Respondent's Exception to paragraphs 13 and 14 of the Findings of Fact of the Recommended Order that the testimony of Respondent's wife regarding the impact of Petitioner's family life was irrelevant and improperly admitted in evidence, is accepted. The issue in the case concerns a demonstration of Petitioner's ability to practice medicine with reasonable skill and safety to patients and such evidence is not relevant to any determination of that issued. Accordingly, paragraphs 13 and 14 of the Findings off Fact are rejected.

   
   

6. The Respondent's Exception to paragraph 18 of the Findings of Fact of the Recommended Order that there was no competent, substantial evidence to characterize Petitioner's lack of contrition and lack of apology for actions which resulted in his revocation of license was a sign of strong character, not lack of rehabilitation, is accepted. The Board finds that reinstatement of licensure is a matter of rehabilitation and that the mere passage of time is not evidence of rehabilitation. The, Board also finds that in considering a petition for reinstatement, the Board should look at evidence of personal assurances of a sense of repentance and a desire to conduct practice in an exemplary fashion in the future. Accordingly, paragraph 18 of the Findings of Fact is rejected and the following substituted therefore:

18. The Board finds that the Petitioner has failed to acknowledge the transgressions of the past and continues to attempt to shift the

responsibility for these transgressions to others than himself. The peponderant evidence adduced by the Petitioner serves to confirm this lack of contrition for the offenses committed.

RULINGS ON RESPONDENT'S EXCEPTIONS TO THE CONCLUSIONS OF LAW

The Petitioner's Exception to paragraph 22 of the Conclusions of Law of the Recommended Order that the competent, substantial evidence does not support the conclusion that the Petitioner has been safely engaging in the practice of medicine since 1981, is accepted. The record reflects that, since 1981, the Petitioner was subject to malpractice actions and had his Missouri license acted against by the Missouri Board.

1. Respondent's Exception to paragraph 23 of the Conclusions of Law of the Recommended Order that the Board does not have decisional control based upon a finding that prior cases control the reinstatement of Petitioner, is accepted. The Board finds that, as a matter of law, the Petitioner's failure to acknowledge the underlying events that caused his Florida license to be revoked and his incarceration for Medicare fraud demonstrates a lack of rehabilitation for which his petition for reinstatement should be denied.

   
   

2. Respondent's Exception to paragraph 25 of the Conclusions of Law of the Recommended Order which finds that, similar to the case of Jerry Ross Smart v. Board of Real Estate, DPR, DOAH Case No. 81-271 (Recommended Order filed June 22, 1981), enough time has passed to justify reinstatement, is granted. The Board rejects paragraph 25 and substitutes therefore the following.

25. The matter in this case is not merely a passage of time between revocation for a singular violation and petition for reinstatement. This matter involves a Petitioner whose license to practice medicine in Missouri has recently been otherwise acted against for acts which in and of themselves may form an independent basis for denial of reinstatement. This matter involves a Petitioner who made application for licensure in numerous jurisdictions, all of which except Missouri, have found the Petitioner's

actions sufficient to warrant denial of licensure. The Florida Board of Medicine is no less obliged to protect its citizens from unsafe and incompetent practitioners.

FINDINGS OF FACT

1. There is competent substantial evidence to support the findings of facts, as amended.

   
   

2. The findings of fact, as amended, 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. Having reviewed and acted upon the recommended order, the Board adopts, accepts and incorporates herein, as amended, the Conclusions of Law of the Recommended Order.

RECOMMENDATION

The Board rejects the Recommendation to grant reinstatement of licensure and based upon the above amended findings of fact and amended conclusions of law, Petitioner is denied reinstatement of licensure.

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

application for reinstatement of licensure be denied.

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

DONE AND ORDERED this 25th day of August, 1994.

Board of Medicine

Edward A. Dauer, M.D. Chairman

Notice of Right to Judicial Appeal

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy off a Notice of Appeal with the Clerk of the agency and by filing the filing fee and copy of Notice of Appeal with the District Court of Appeal within thirty (30) days of the date of this Order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Paul Watson Lambert, Esquire, at 851 Remington Green Circle, Suite C, Tallahassee, Florida 32308-3749, by US Mail, this day of , 1994.

(undated and unsighed)

Marm Harris Executive Director Board of Medicine

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail Harry M. Katz, P.O. Box 5, Cedar Hill, MO 63016, and to Paul W. Lambert, Esq., 2851 Remington Green Circle, Suite C, Tallahassee, Florida 32308-3749, and by hand delivery to Larry G. McPherson, Jr., chief Medical Attorney, Agency for Health Care Administration, 1940 N. Monroe St., Tallahassee, Florida 32399-0792 on or before 5:00 p.m., this 30th day of August, 1994.

Marm Harris, Ed. D. Executive Director Board of Medicine

Docket for Case No: 93-002797

Orders for Case No: 93-002797