STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS WARTER, M.D., )

)

Petitioner, )

)

vs. ) Case No. 99-1663

) DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to an agreement of the parties, this Recommended Order is being issued by Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings on the basis of a stipulated record, and without an evidentiary hearing.

APPEARANCES

For Petitioner: Monica L. Felder, Esquire

Sean M. Ellsworth, Esquire Dresnick & Ellsworth, P.A. SunTrust Plaza, Suite 701

201 Alhambra Circle

Coral Gables, Florida 33134

For Respondent: Lola M. Swaby, Esquire

Office of the Attorney General Administrative Law Section

The Capitol, Plaza 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner filed an application or request for reactivation of his license to

practice medicine in the State of Florida pursuant to Section 458.313(8), Florida Statutes.

PRELIMINARY STATEMENT

On or about May 19, 1998, the Petitioner, Carlos Warter, M.D., filed an application for licensure as a medical doctor by endorsement. The application was received and processed as an application for a license by endorsement pursuant to

Section 458.313(1), Florida Statutes. Ultimately, the Board of Medicine concluded that the Petitioner was not eligible for licensure under the criteria set forth in subsections (1) through

1. of Section 458.313, Florida Statutes. The Petitioner requested reconsideration of the Board's decision. The Board denied the request for reconsideration. Thereafter, the Petitioner filed a timely request for an evidentiary hearing. In his request for hearing the Petitioner asserts that he is eligible for licensure under both subsection (1) and

   subsection (8) of Section 458.313, Florida Statutes. Accordingly, he challenges both the Board's denial of his eligibility under Section 458.313(1), Florida Statutes, and the Board's failure to rule on whether he is eligible under Section 458.313(8), Florida Statutes.

   The matter was referred to the Division of Administrative Hearings for assignment to an administrative law judge. A final hearing was scheduled for June 11, 1999.

   On June 1, 1999, a status conference was conducted in this case. Counsel for all parties participated in the conference. During the course of the conference, counsel for Petitioner conceded that the Petitioner did not meet the requirements for licensure under Section 458.313(1), Florida Statutes. 1/ However, counsel for Petitioner asserted that the Petitioner had also applied for licensure under Section 458.313(8), Florida Statutes, that the Petitioner met the requirements for licensure under Section 458.313(8), Florida Statutes, that the Petitioner was entitled to licensure under Section 458.313(8), Florida Statutes, and that the Petitioner could prove his entitlement at an evidentiary hearing.

   The Respondent argued that, in view of the Petitioner's concession that he was not eligible for licensure under Section 458.313(1), Florida Statutes, the Petitioner was not entitled to an evidentiary hearing, because the Petitioner had

   never filed an application or request for licensure pursuant to Section 458.313(8), Florida Statutes. 2/ Following a lengthy discussion of these opposing views, counsel for all parties eventually agreed that the best procedure would be to bifurcate the two issues. Accordingly, an order was issued on June 2, 1999, which included the following:

   After extensive discussion, counsel for the Petitioner and counsel for the Board of Medicine agreed that the issues in this case should be bifurcated, and that the case should go forward first on the issue of whether the Petitioner filed an application

   or request for reactivation of his license to practice medicine in Florida pursuant to Section 458.313(8), Florida Statutes.

   Counsel for the parties participating in the conference also agreed that the issue of whether the Petitioner had filed such an application or request could be determined on the basis of a stipulated documentary record without need for an evidentiary hearing.

   Accordingly, it is ORDERED:

   1. That the final hearing in this case previously scheduled for June 11, 1999, is cancelled.

   2. That by no later than Tuesday, June 8, 1999, the parties shall file the documents that will comprise the stipulated record for purposes of resolving the first of the bifurcated issues in this case.

   3. That following consideration of such documents, if it appears to be necessary or appropriate to do so, a telephone conference will be arranged in order to provide an opportunity for oral argument on the first bifurcated issue.

On June 8, 1999, the parties filed the stipulated record upon which the first bifurcated issue would be decided. The record consists of four collections of documents designated as Exhibits A through D. 3/ On June 9, 1999, the Respondent filed a motion seeking to add another document to the stipulated record. The Petitioner objected to the motion. The motion was denied.

Following the filing of the stipulated record, the parties were afforded an opportunity to present oral argument or to file either proposed recommended orders or memoranda of law. Counsel for all parties declined to take advantage of these opportunities.

FINDINGS OF FACT

1. The Petitioner, Carlos Warter, M.D., 4/ was first issued a license to practice medicine in the State of Florida on August 2, 1977. It was a license by endorsement.

2. For several years following 1977, the Petitioner practiced medicine in Chile.

3. By letter dated July 2, 1980, the Florida Board of Medical Examiners wrote to the Petitioner about the status of his Florida license. The letter included the following:

   Pursuant to Section 458.051(3), Florida Statutes, a license obtained by endorsement in this State shall become void and of no force and effect unless the recipient utilizes the same by actively engaging in the practice of medicine in the State of Florida within three (3) years after the issuance of the license and continues such practice in this State for a minimum period of one (1) year. This practice requirement may be postponed only if and while the holder of an endorsement license is in the active military service of the United States or in an AMA approved training program.

4. The Petitioner never actively engaged in the practice of medicine in Florida. Accordingly, by operation of Section 458.051(3), Florida Statutes, his Florida license, obtained by endorsement, became void and of no force and effect.

5. After practicing for many years in other jurisdictions, the Petitioner decided he wanted to live in Florida and practice medicine in Florida. To that end, he contacted the staff of the Board of Medicine to inquire as to what would be required of him to obtain a license to practice medicine in Florida. As a result

   of his conversations with Board staff, the Petitioner believed that he could not reactivate his prior Florida license, which had become void by his failure to ever practice medicine in Florida. 5/ Based on that belief, the Petitioner did not file an application seeking to reactivate his void license. Rather, he filed an application seeking a new license by endorsement pursuant to Section 458.313(1), Florida Statutes.

6. The Petitioner filed an application for licensure by endorsement on or about April 19, 1998. Question 9 on the application form reads: "Are you or have you ever held any professional/medical license in any State in the U.S., to include Canada, Guam, Puerto Rico or U.S. Virgin Islands? (If yes, list profession(s), state(s), license numbers(s), and date(s) of issuance.)" The Petitioner's answer was: "California 1980 to date/A35572." The Petitioner did not list his prior Colorado or New Mexico licenses to practice medicine. More importantly, he did not list his prior, now void, license to practice medicine in the State of Florida. Further, the Petitioner's prior license to practice medicine in the State of Florida is not mentioned anywhere else in the Petitioner's application for license by endorsement filed on May 19, 1998. 6/

7. Following several requests for additional information, the Petitioner's 1998 application was scheduled for consideration at a meeting of the Credentials Committee of the Board of Medicine on November 14, 1998. The Petitioner was present at the

   November 14, 1998, meeting, at which time he was not represented by legal counsel. At the conclusion of that meeting, the Credentials Committee voted unanimously to recommend that the Petitioner's application for licensure by endorsement be denied. During the meeting on November 14, 1998, there was no mention by either the Petitioner or any member of the Credentials Committee of the subject of reactivating the Petitioner's prior void license. The Petitioner was, of course, disappointed with the vote of the Credentials Committee. He was also of the view that the members of the Credentials Committee had treated him in a shabby, rude, and disrespectful manner, and that they had failed to properly perform their duties.

8. Following his first appearance before the Credentials Committee of the Board of Medicine, the Petitioner obtained legal counsel. On January 20, 1999, the Petitioner wrote a letter to Governor Jeb Bush, which included the following comments:

   I first called the Board of Medicine and asked to have my license reactivated, but was informed that was not possible, and that I would have to reapply for licensure.

   
   

   * * *

   
   

   I then hired an attorney to assist with my application. She notified me that I was eligible to receive a license under a provision that allowed for reactivation of my license in certain circumstances.

   
   

9. Therafter, the Petitioner's legal counsel made numerous efforts to persuade the Credentials Committee and the full Board of Medicine to treat the Petitioner's application of May 19,

   1998, as an application for reactivation under Section 458.313(8), Florida Statutes. Those efforts were unsuccessful and the Board of Medicine, on March 5, 1999, issued a Notice of Intent to Deny Application for Licensure by Endorsement. The stated grounds in the notice were failures to meet several requirements of Section 458.313(1), Florida Statutes. The notice did not mention Section 458.313(8), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

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

11. In cases involving applications for licenses, the Petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to the licensure he seeks. On the bifurcated issue addressed here, the Petitioner bears the burden of proving by a preponderance of the evidence that he filed an application seeking reactivation of his void Florida license pursuant to Section 458.313(8), Florida Statutes.

12. The preponderance of the evidence is otherwise. The Petitioner's 1998 application is solely an application to obtain a new license by endorsement. It is not an application seeking the reactivation of a prior void license.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that a final order be issued in this case concluding that the

Petitioner, Carlos Warter, M.D., is not eligible for licensure under Section 458.313(1), Florida Statutes, because he admittedly fails to meet all of the requirements for issuance of a license under Section 458.313(1), Florida Statutes, and that he is not eligible for licensure under Section 458.313(8), Florida Statutes, because he has never filed an application for reactivation of his prior voided license pursuant to

Section 458.313(8), Florida Statutes, and the statutory deadline for filing such applications has expired. 7/

DONE AND ENTERED this 28th day of September, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 28th day of September, 1999.

ENDNOTES

1/ This concession had also been previously made in a letter dated December 30, 1998, from Petitioner's legal counsel to the members of the Credentials Committee of the Board of Medicine.

2/ The Respondent had earlier raised these same arguments in support of a previously filed Respondent's Motion to Relinquish Jurisdiciton. The motion seeking relinquishment of jurisdiction was denied, with leave to the Respondent to raise the issue again at a later date.

3/ Exhibit A is a 314-page collection of certified copies of documents that comprise the Petitioner's complete application file. For convenience, all documents in Exhibit A have been numbered sequentially. In their stipulation, the parties have directed specific attention to twelve documents in Exhibit A. Exhibit B is a certified copy of the "Application Packet" utilized by the applicant. This exhibit includes the instructions that were sent to the Petitioner. Exhibit C consists of copies of several statutory provisions. Exhibit D consists of copies of several rule provisions.

4/ The Petitioner has at times also used the names Charles Warter and Carlos Livia Warter-Goldhaker.

5/ The record in this case does not contain any information about what the Board staff actually said to the Petitioner.

Accordingly, no finding of fact has been made to the effect that Board staff specifically told the Petitioner that he could not reactivate his void Florida license. But, regardless of what was actually said, it is accepted that, following that conversation, the Petitioner believed that he could not reactivate his void Florida license, and his subsequent conduct was guided by that belief.

6/ The sine qua non of an application to reactivate a license under Section 458.313(8), Florida Statutes, is the existence of a prior void license to practice medicine in Florida. Even in the absence of a question such as Question 9 on the application, common sense dictates that a person seeking to reactivate a prior void license would mention somewhere on the application form that he once had a license of the type addressed by Section 458.313(8), Florida Statutes. Common sense also dictates that a person seeking to reactivate a prior void license would somewhere in the application include the word "reactivate," or some similar word such as "renew," or "reinstate," or "revalidate," or "restore."

No such words appear anywhere in the Petitioner's application filed on May 19, 1998.

7/ The statutory deadline for filing applications under Section 458.313(8), Florida Statutes, was October 1, 1998.

COPIES FURNISHED:

Monica L. Felder, Esquire Sean M. Ellsworth, Esquire Dresnick & Ellsworth, P.A. SunTrust Plaza, Suite 701

201 Alhambra Circle

Coral Gables, Florida 33134

Lola M. Swaby, Esquire

Office of the Attorney General Administrative Law Section

The Capitol, Plaza 01 Tallahassee, Florida 32399-1050

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angela T Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

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: 99-001663

Orders for Case No: 99-001663