STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-4188

)

JOHN E. GDOWIK, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on January 19, 1999, by video teleconference.

APPEARANCES

For Petitioner: Kristina Sutter, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: John E. Gdowik, D.O., pro se

General Delivery Hollywood Post Office Hollywood, Florida 33022

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On November 12, 1997, Petitioner issued an Administrative Complaint whereby it alleged that Respondent violated the provisions of Section 459.015(1)(g), Florida Statutes, by having "failed to perform . . . [a] statutory or legal obligation placed upon [him]" by Section 465.0276, Florida Statutes. The gravamen of such charge was predicated on Petitioner's allegation that Respondent, a dispensing physician, failed to cooperate with agency investigators when they sought to enter or inspect Respondent's office.

Respondent filed an Election of Rights which disputed the factual allegations contained in the Administrative Complaint, and on September 25, 1998, Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called Anthony Spina and Hugh Fitzpatrick, as witnesses, and Petitioner's Exhibits 1, 2, 7, 10,

11, 14, 15, 16, and 16A were received into evidence, subject to the limitations noted of record. Respondent testified on his own behalf, and Respondent's Exhibits 1-4 were received into evidence.

The hearing transcript was filed February 12, 1999, and the parties were accorded until February 22, 1999, to file proposed

recommended orders. Both parties elected to file such proposals and they have been duly-considered.

FINDINGS OF FACT

1. The Department of Health, Division of Medical Quality Assurance, Board of Osteopathic Medicine (Department), is a state agency charged with the duty and responsibility for regulating the practice of osteopathic medicine pursuant to Sections 20.43 and Chapters 455 and 459, Florida Statutes.

2. Respondent, John E. Gdowik, is, and was at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0002696. Moreover, during all such periods, Respondent was registered with the Department, pursuant to Section 465.0276, Florida Statutes, as a dispensing physician and thereby accorded the privilege of dispensing medicinal drugs from his office for compensation.

3. At the times pertinent to this case, Respondent maintained his office at what was commonly known as 6136 Johnson Street, Hollywood, Florida; however, he had removed the street numbers from the building and chose to refer to his office location as the southeast corner of 62nd Avenue and Johnson Street. Respondent also refused mail delivery at his office, and directed, consistent with a sign posted on the premises discussed infra, that all mail be sent to him at General Delivery, Hollywood, Florida.

4. At or about 11:30 a.m., April 4, 1997, Anthony Spina, an agency investigator, went to Respondent's office for the purpose of conducting a routine inspection pursuant to Section 465.0276(3), Florida Statutes, to ascertain whether Respondent was in compliance with all statutes and rules pertinent to his dispensing practice. At the time, the office was closed and

   Mr. Spina was unable to gain entry; however, he did take note of two eight-and one-half by eleven-inch signs posted at the entrance. One sign read, as follows:

   NOTICE NO

   TRESPASSING ALL GOVERNMENTAL OFFICIALS KEEP OUT

   
   

   POSTED

   
   

   The other sign read, as follows:

   
   

   NOTICE

   
   

   John Edwin Gdowik, a Good and Lawful Christian man and Osteopathic Physician, teaches and advises patrons on matters of health.

   
   

   All mail should be sent to

   
   

   John Edwin Gdowik General Delivery Hollywood, Florida

   
   

5. Following Mr. Spina's return to his own office, he located a listing in the local white pages telephone directory for Respondent at the subject address, and on April 7, 1997, Mr. Spina engaged in a brief telephone conversation with the

   Respondent. At that time, Mr. Spina informed Respondent that he was proposing to conduct an annual inspection, based on the privilege accorded Respondent as a dispensing physician. In response, Respondent told Mr. Spina to send him a letter to such effect (place his request in writing), and referred Mr. Spina to the sign directing that all mail be sent to Respondent at General Delivery, Hollywood, Florida. Respondent did not, at anytime during the course of such conversation refuse or otherwise imply he would not allow an inspection of his office.1 Mr. Spina did not, however, submit a letter to Respondent or take any further action (of which Respondent would have been aware) to inspect Respondent's office.

6. Following his conversation with Respondent, Mr. Spina apparently notified Hugh Fitzpatrick, his supervisor, regarding his efforts to inspect Respondent's office and the substance of his conversation with Respondent. In turn, Mr. Fitzpatrick informed the agency's legal office, and they requested a written report from Mr. Spina.

7. By memorandum of April 14, 1997 (Petitioner's

   
   

   Exhibit 11), Mr. Spina provided the report requested by the legal office. That report noted the information discussed in paragraphs 4 and 5, supra, and further noted that "[o]n 4/10/97, this investigator . . . returned to the subject's office. The office was closed. We obtained three polaroid photographs [of

   the signs heretofore discussed]." Mr. Spina's memorandum enclosed photocopies of the photographs.2

8. Based on Mr. Spina's report, the agency instituted an investigation to resolve whether there was probable cause to believe that Respondent had violated Subsection 459.015(1)(g), Florida Statutes, by "failure to allow inspection by agency for a dispensing physician." (Petitioner's Exhibits 10 and 16A.) Consistent with Subsection 455.225(1)(b), Florida Statutes, by letter of June 4, 1997, Mr. Fitzpatrick, on behalf of the agency, sought to advise Respondent of the pendency of the investigation. The agency's form letter provided, as follows:

   Dear: Dr. Gdowik:

   
   

   This letter is notification that there is a pending investigation regarding your license to practice in the State of Florida.

   
   

   The investigation is base[d] upon the enclosed document which was determined to be legally sufficient for investigation pursuant to section 455.225, Florida Statutes. You are invited to submit a written response or you may call me to schedule an interview within

   45 days of receiving this letter. Your response will be made part of the file and will be considered by the agency and probable cause panel in determining whether a formal administrative complaint should be filed in this matter. In addition, for consideration by the probable cause panel, please provide a copy of your curriculum vitae and identify your specialty, if any. If you choose to send a response, please use the mailing address printed on the bottom of this letter and include the AHCA case number in any correspondence you may send concerning this matter.

   At this stage, the investigation is confidential. This means that the contents of this investigation cannot be disclosed to you or the general public, nor can it be disclosed to the public the fact that the attached documentation was received, unless probable cause is found or you submit a written waiver of confidentiality.

   
   

   You are not required to answer any questions or give any statement and you have the right to be represented by counsel. It is not possible to estimate how long it will take to complete this investigation because the circumstances of each investigation differ.

   
   

   Thank you for your cooperation and understanding in this matter. If you have any questions or wish to discuss this in greater detail, you may contact me at the telephone number listed at the bottom of this letter.

   
   

   The notification letter was addressed to Respondent at

   
   

   6136 Johnson Street, Hollywood, Florida, and on June 11, 1997, was returned by the Post Office marked "Return to Sender."

9. The agency took no further action regarding the matter until August 1, 1997, when Mr. Fitzpatrick telephoned Respondent's office regarding the investigation. At the time, Mr. Fitzpatrick spoke with the receptionist, who advised him that the Respondent was busy seeing patients, and she requested that the letter of June 4, 1997, be re-mailed to Respondent at General Delivery, Hollywood, Florida. Mr. Fitzpatrick persisted in his effort to speak with the Respondent, and told the receptionist to advise the Respondent that "if he doesn't call back within the hour, the case report in question will be sent forward." Respondent did not return Mr. Fitzpatrick's call; Mr. Fitzpatrick

   did not re-post the notification letter; and on August 1, 1997, Mr. Fitzpatrick completed his report and "sent [it] forward" to the legal office.3 (Petitioner's Exhibit 10.)

10. The complaint, as well as the results of

    
    

    Mr. Fitzpatrick's investigation, was presented to the Probable Cause Panel for the Board of Osteopathic Medicine, and on November 12, 1997, the subject Administrative Complaint was issued which charged that Respondent violated the provisions of Subsection 459.015(1)(g), Florida Statutes, because he "failed to cooperate with . . . agency investigators in reference to an inspection of Respondent's dispensing practitioner facility."

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

12. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th

    DCA 1983). Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)("Predicating disciplinary action against a licensee on conduct never alleged in the administrative complaint or some comparable pleading violates the Administrative Procedures Act.") See also Kinney v. Department of State,

    501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 844 (Fla. 2d DCA 1984). Finally, in determining whether Respondent violated the provisions of Section 459.015(1)(g), Florida Statutes, as alleged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

13. Pertinent to this case, Section 459.015(1), Florida Statutes, provides that the Board of Osteopathic Medicine may discipline a licensee, if it is shown that the licensee is guilty of:

    (g) Failing to perform any statutory or legal obligation placed upon a licensed osteopathic physician.

14. Respondent, as a dispensing physician, is governed by certain conventions established by Chapter 465, Florida Statutes, and the rules promulgated pursuant thereto. Pertinent to this case, Section 465.0276 provides, as follows:

    Dispensing practitioner.--

    1. A person may not dispense medicinal drugs unless licensed as a pharmacist or otherwise authorized under this chapter to do so, except that a practitioner authorized by law to prescribe drugs may dispense such drugs to her or his patients in the regular course of her or his practice in compliance with this section.

    2. A practitioner who dispenses medicinal drugs for human consumption for fee or remuneration of any kind, whether direct or indirect, must:

       1. Register with her or his professional licensing board as a dispensing practitioner

          . . .

       2. Comply with and be subject to all laws and rules applicable to pharmacists and pharmacies, including, but not limited to, this chapter and chapter[] 499 . . .

       3. Before dispensing any drug, give the patient a written prescription and orally or in writing advise the patient that the prescription may be filled in the practitioner's office or at any pharmacy.

    3. The department shall inspect any facility where a practitioner dispenses medicinal drugs pursuant to subsection (2) in the same manner and with the same frequency as it inspects pharmacies for the purpose of determining whether the practitioner is in compliance with all statutes and rules applicable to her or his dispensing practice.

15. Subsection 465.017(1), Florida Statutes, describes the Department's authority to inspect, as follows:

    1. Duly authorized agents and employees of the department shall have the power to inspect in a lawful manner at all reasonable hours any pharmacy, hospital, clinic,

       wholesale establishment, manufacturer, physician's office, or any other place in the state in which drugs and medical supplies are manufactured, packed, packaged, made, stored, sold, offered for sale, exposed for sale, or kept for sale for the purpose of:

       1. Determining if any of the provisions of this chapter or any rule promulgated under its authority is being violated;

       2. Securing samples or specimens of any drug or medical supply after paying or offering to pay for such sample or specimen; or

       3. Securing such other evidence as may be needed for prosecution under this chapter.

16. As the perceived violation of Subsection 459.015(1)(g), Florida Statutes, Section 499.005, Florida Statutes, proscribes the following conduct:4

    It is unlawful to perform or cause the performance of any of the following acts in this state:

    
    

    * * *

    
    

    (6) The refusal:

    (a) To allow the department to enter or inspect an establishment in which drugs, devices, or cosmetics are manufactured, processed, repackaged, sold, brokered, or held. . . .

    
    

17. Given the facts as found, it cannot be concluded, with the degree of certainty required by law, that Respondent refused to allow the Department to enter or inspect his facility, as proscribed by Section 499.005(6)(a), Florida Statutes. Consequently, the Department has failed to establish that Respondent violated the provisions of Section 459.015(1)(g), Florida Statutes, as alleged in the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered which dismisses the Administrative Complaint.

DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1999.

ENDNOTES

1/ In reaching such conclusion, the testimony of Mr. Spina has not been overlooked; however, to the extent Mr. Spina's testimony implies otherwise, it has been rejected as contrary to the more credible proof. Indeed, had any such refusal occurred, it is reasonable to assume the refusal would have been mentioned in

Mr. Spina's memorandum (Petitioner's Exhibit 11) regarding the event. Its absence from the memorandum, as well as Mr. Spina's less than compelling recall regarding the substance of the conversation, is telling, and Respondent's version of the telephone conversation is credited.

2/ At hearing, Mr. Spina testified that he returned to the premises on that date (April 10, 1997) to again attempt an inspection. While I find Mr. Spina's testimony less than credible in this regard, it is not particularly significant since no prior arrangement had been made with Respondent and he was not otherwise aware of Mr. Spina's presence or intention on that date.

3/ In concluding that Mr. Fitzpatrick did not re-post the letter, his testimony to the contrary has not been overlooked; however, such testimony is contrary to the more credible proof, as well as inferences to the contrary, and has been rejected. Moreover, whether Respondent received the letter or not, or whether Respondent returned Mr. Fitzpatrick's telephone call or not, is of no import since, as observed by the letter, during the course of the investigation "[Respondent was] not required to answer any questions or give any statement."

The testimony Mr. Fitzpatrick offered on other matters, as well as his report (Petitioner's Exhibit 10) and his affidavit (Petitioner's Exhibit 7), is also less than persuasive. In this regard it is noted that Mr. Fitzpatrick describes his involvement in the matter, and his contact with Respondent's office on

August 1, 1997, as designed to arrange an inspection of the office. (Transcript, pages 51, 52, and 65.) Such testimony is unworthy of belief, as his involvement was limited to the investigation of the pending complaint (by Mr. Spina). (Petitioner's Exhibit 10.) Rather, the only contact Respondent had from any agency representative requesting an inspection was the one telephone conversation Respondent had with Mr. Spina on April 7, 1997.

Mr. Fitzpatrick's investigative report (Petitioner's Exhibit 10) also exaggerates. For example, with regard to the conversation with Respondent's office of August 1, 1997, Mr. Fitzpatrick states:

I again asked to speak with the doctor, as he was fully aware of the purpose of this call. He had been spoken to a number of times by Investigator Spina, and has not responded.

As heretofore noted, Respondent was not aware of the purpose of Mr. Fitzpatrick's call (the investigation). Moreover, Mr.Spina did not speak with Respondent "a number of times," but only once, and that conversation did not imply any further response was expected from Respondent.

Mr. Fitzpatrick's affidavit (Petitioner's Exhibit 7) is also misleading. That affidavit provides, in part, as follows:

Dr. Gdowik was spoken to on the phone on April 7, 1997 and informed of the required dispensing practitioner inspection. His response send him a letter and referred to the above signs.

The notification letter was sent, and returned by the Post Office marked "Return to Sender."

I again called the office of the doctor on August 1, 1997 and was informed by the office manager the doctor was too busy to speak with me, send a letter to General Delivery.

Again, I asked to speak with the doctor and he never responded.

The foregoing is misleading in that one would infer in reading the affidavit that in response to Respondent's statement to "send him a letter," a "notification letter was sent, and returned by the Post Office marked 'Return to Sender.'" In fact, no letter was sent in response to Respondent's request. Rather, the returned letter was the letter of June 4, 1997, sent by Mr. Fitzpatrick regarding the investigation.

In sum, Mr. Fitzpatrick's testimony, like Mr. Spina's testimony, is tainted with ill will, bias, and otherwise of doubtful sincerity or credibility.

4/ The Administrative Complaint did not cite Section 499.005(6)(a), Florida Statutes, as the statutory reference for taking disciplinary action; however, such failure was not prejudicial to the licensee since he was informed accurately of the conduct upon which the charge was based. Maravel v.

Department of Professional Regulation, 498 So. 2d 481 (Fla. 1st DCA 1986), and Farzad v. Department of Professional Regulation,

443 so. 2d 373 (Fla. 1st DCA 1983). Contrast, Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)("Predicating disciplinary action against a licensee on conduct never alleged in the administrative complaint or some comparable pleading violates the Administrative Procedures Act.")

COPIES FURNISHED:

Kristina Sutter, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

John E. Gdowik, D.O. General Delivery Hollywood Post Office Hollywood, Florida 33022

Bill Buckhalt, Executive Director Board of Osteopathic Medicine Department of Health

1940 North Monroe Street Tallahassee, Florida 32399-0750

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle Southeast Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle Southeast Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-004188

Orders for Case No: 98-004188