STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 00-2618

)

JERRY CLIFTON LINGLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on October 18, 2000.

APPEARANCES

For Petitioner: Kim M. Kluck

Carol Gregg Senior Attorneys

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Christopher Grillo

1 East Broward Boulevard, Suite 700 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The issue is whether Respondent attempted to obtain his license to practice medicine by fraudulent representations, in violation of Section 458.331(1)(a), Florida Statutes, or if Respondent misrepresented or concealed a material fact during any phase of a licensing or disciplinary process, in violation of

Section 458.331(1)(gg), Florida Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 1, 2000, Petitioner alleged that, on January 12, 1994, Respondent submitted an application for medical licensure by endorsement and that the application states that Respondent had never been convicted of a misdemeanor. However, the Administrative Complaint alleges that, on October 24, 1988, a Pennsylvania court found Respondent guilty of a misdemeanor charge of failing to remit sales tax, for which the court fined Respondent $1000 plus costs and placed him on probation for six months.

Respondent requested a formal hearing.

During the hearing, Petitioner dropped the allegations contained in Paragraphs 4, 7, 11, and 15 of the Administrative Complaint.

At the hearing, Petitioner called no witnesses and offered into evidence four exhibits, including a late-filed exhibit detailing the criminal charges filed against Respondent.

Respondent called one witness and offered into evidence one exhibit. All exhibits were admitted.

The parties did not order a transcript.

FINDINGS OF FACT

1. By application dated and acknowledged on December 27, 1993, Respondent applied for a medical license by endorsement.

   Respondent filed the application with the Board of Medicine on January 12, 1994.

2. Question 6 on the application asks:

   
   

   Have you ever been convicted of a felony? Yes No ; a misdemeanor? Yes

   No . Have any judgments ever been entered against you? Yes No . Have you ever been sued for malpractice? Yes No .

   
   

3. In response, Respondent typed X’s in the “No” boxes for the first two questions in Question 6.

4. Immediately above the signature of Respondent and acknowledgement of the notary public, on the last page of the application, is the statement:

   I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me are true and correct. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida.

5. In fact, on October 24, 1988, Respondent was found guilty, after a three-day jury trial, of 12 misdemeanor counts of failure to remit a total of over $47,000 in state sales taxes due from November 20, 1985, through December 20, 1986. On December 22, 1988, the court sentenced Respondent to pay a fine of $12,000 on all 12 counts and reasonable court costs, and serve six months’ probation on each of the 12 counts, with the periods of probation to run consecutively.

6. Respondent’s explanation for the omission from the application is that he mistakenly believed that the only misdemeanors covered by the question were those involving the practice of medicine.

7. Respondent’s explanation for the nondisclosure is unreasonable. Nothing in the language of Question 6 limits the scope of the inquiry to misdemeanors involving the practice of medicine. The preceding question in Question 6 asks about felonies without qualification or limitation, and it is absurd to interpret this question as not asking about any felony, such as bank robbery, even though the felony did not involve the practice of medicine. For the same reason, Respondent knew that he was to have disclosed any misdemeanor, even if it did not involve the practice of medicine.

8. Respondent’s explanation for the commission of the crimes is more plausible. Briefly, Respondent testified that he had invested about $100,000 of the total of $250,000 in the acquisition of the Philadelphia franchise of long-distance telephone provider that had emerged immediately following the breakup of AT&T in the mid 1980s. Essentially reselling AT&T long-distance services, the new company paid AT&T at wholesale for the services that it marked up and sold at retail to end users.

9. Respondent explained that he had been an absentee owner for much of the time. Also, the AT&T billing for this new

   arrangement was confused and irregular. Changes in ownership preceding and following Respondent’s investment in the company further complicated the situation.

10. A Pennsylvania revenue auditor contacted Respondent over a year after he had sold his stock in the company in 1986, gotten married, and been traveling extensively out of state. At this time, Respondent learned of the company’s sales tax problems, which involved a complicated telecommunications excise tax. Respondent’s corporate purchaser was no longer operating the company, which had become bankrupt. Respondent paid the taxes due, but the Commonwealth of Pennsylvania nevertheless prosecuted him for his role in the failure of the company to pay its taxes.

11. After sentencing, Respondent paid the fine and served his probation without incident. He disclosed the misdemeanor convictions to the Pennsylvania agency regulating the practice of medicine and was able to continue practicing medicine there.

12. After consideration of Respondent’s application, the Florida Board of Medicine issued Respondent license number ME 0066606.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

14. Section 458.331(1)(a) and (gg) provides that the Board of Medicine may impose discipline against a physician who is guilty of:

    1. Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations, or through an error of the department or the board.

       
       

       (gg) Misrepresenting or concealing a material fact at any time during any

       phase of a licensing or disciplinary process or procedure.

       
       

15. Section 458.331(2) provides that the Board of Medicine may impose discipline, including revocation, for any violation of Section 458.331(1).

16. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Petitioner has proved by clear and convincing evidence that Respondent obtained his license by concealing the fact of his misdemeanor convictions for failure to remit sales tax payments. Although the omission probably was intentional, Section 458.331(1)(gg) better describes the actual conduct of Respondent in omitting mention of his misdemeanor convictions when applying for licensure by endorsement, which clearly is part of the licensing process. However, Section 458.331(1)(a), which does not mention the materiality of the fraudulent representation, also contains an implicit requirement of

    materiality because a fraudulent misrepresentation of an immaterial fact, such as by shaving a few years off one's age, would not justify disciplinary action.

18. Therefore, the real question in this case turns on the materiality of Respondent's omission of the misdemeanor convictions for failing to remit sales tax.

19. Section 458.311(1)(d) provides that an applicant must show that he or she "[h]as not committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331."

20. Section 458.331(1)(c) identifies as a basis for disciplinary action: "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."

21. The materiality issue thus expresses itself in whether Respondent's conviction for 12 misdemeanor counts of failure to remit sales tax constitutes a basis for denying or disciplining his license. Petitioner produced no evidence on this point or the relationship of these 12 misdemeanor convictions for failing to pay sales tax to the practice of medicine or ability to practice medicine. Absent evidence establishing such a linkage, insufficient such linkage appears as a matter of reason. Cf. Bachynski v. Department of Professional Regulation, 471 So. 2d

1305 (Fla. 1st DCA 1985)(applicant’s failure to disclose federal misdemeanor conviction involving stolen automobile parts worth less than $100 does not establish moral turpitude).

RECOMMENDATION

It is

RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 4th day of December, 2000.

COPIES FURNISHED:

Tanya Willaims, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way Bin C03

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

Kim M. Kluck Carol Gregg Senior Attorneys

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Christopher Grillo

1 East Broward Boulevard, Suite 700 Fort Lauderdale, Florida 33301

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-002618

Orders for Case No: 00-002618