STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

Petitioner,

vs.

MILTON KAUFMAN, OT,

Respondent.

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) Case No. 05-0005PL

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RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on

February 18, 2005, at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Robert E. Fricke, Esquire

Paula A. Willis, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Robert Rappell, Esquire

Craig M. Rappel, Esquire Rappell & Rappell

1515 Indian River Boulevard, Suite A210 Vero Beach, Florida 32960-7103

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, because of intoxication, chemical dependency, or any other mental or

physical condition, is unable to practice occupational therapy with reasonable skill and safety to patients.

PRELIMINARY STATEMENT

On September 23, 2004, Petitioner Department of Health issued an Administrative Complaint against Respondent Milton Kaufman. Petitioner charged Respondent pursuant to Section 468.217(1)(t), Florida Statutes, with being "unable to practice occupational therapy with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition."

Mr. Kaufman timely requested a formal hearing, and on January 3, 2005, Petitioner filed the pleadings with the Division of Administrative Hearings, where an Administrative Law Judge was assigned to preside in the matter.

The final hearing took place on February 18, 2005, with both parties present. Petitioner called Dr. Neville C. Marks as its only witness and offered Petitioner's Exhibits 2 through 5, which were received in evidence. Mr. Kaufman testified on his own behalf and presented the testimony of Dr. Joseph Altieri.

Respondent also moved four exhibits, numbered 1 through 4, into evidence.

At Petitioner's request, the undersigned took official recognition of Sections 468.217 and 456.072, Florida Statutes (2004).

The final hearing transcript was filed on March 11, 2005.

Proposed Recommended Orders were due on March 21, 2005, and both parties filed one. Each side subsequently moved to strike the other's Proposed Recommended Order. Petitioner argues that Mr. Kaufman's Proposed Recommended Order contains references to facts not established by the evidence of record (and it does).

Mr. Kaufman argues that Petitioner's Proposed Recommended Order was filed one day late (and it was). The parties' submissions were considered notwithstanding their respective deficiencies. The motions to strike are denied.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

1. Respondent Milton Kaufman ("Kaufman") is a Florida- licensed occupational therapist and, as such, falls under the regulatory and disciplinary jurisdiction of Petitioner Department of Health ("Department"). At the time of the final hearing, Kaufman was not actively practicing occupational therapy, because his license had been suspended pursuant to an emergency order.

2. On May 27, 2004, Kaufman was seen for the first time by a psychiatrist named Neville Marks. The appointment had been made at the instance of the Professionals Resource Network ("PRN"), a program that serves health care practitioners who have problems arising from substance abuse or dependency. (PRN had taken an interest in Kaufman after two persons in Kaufman's office had made complaints to PRN regarding Kaufman's behavior. Neither complainant testified at the final hearing, however, and no firsthand evidence was presented concerning the events about which they had complained.1 For that mater, no firsthand evidence of any of Kaufman's work-related conduct was adduced.2) The evaluation lasted only about 15 minutes, Kaufman having arrived late for the appointment.

3. During the initial evaluation, Kaufman told Dr. Marks that he (Kaufman) did not have problems with chemical dependency. While there is no evidence explaining what Kaufman understood the term "chemical dependency" to mean, the undersigned accepts his denial as credible insofar as, more likely than not,3 Kaufman in fact was not relying upon a chemical to function in daily life or abusing a chemical to the point that his ability to function in daily life was substantially impaired or affected.4 Dr. Marks nevertheless felt that a full evaluation was needed, and he obtained a urine sample from Kaufman for testing.

4. Dr. Marks next saw Kaufman on June 1, 2004. During this second visit, Dr. Marks told Kaufman that his urine had tested positive for the presence of Valium, hydrocodone (a painkiller), and marijuana. (The particular test Dr. Marks had used did not detect the amounts of these substances.) Kaufman then admitted to Dr. Marks (and he later testified at hearing) that he had used these drugs, an undisputed fact which the undersigned hereby finds.

5. Although Dr. Marks and the Department make much of this urine test, the result is not as probative of the disputed material facts as it might seem, when placed in the proper factual context. As Kaufman explained to Dr. Marks on June 1, 2004, Kaufman had been taking pain medications to alleviate the discomfort caused by kidney stones, a condition from which he had suffered for about a year before seeing Dr. Marks. The Department presented no evidence contradicting this credible explanation or demonstrating that Kaufman had not taken the hydrocodone pursuant to a licit prescription.5 Given the state of the evidential record, the undersigned is not clearly convinced that Kaufman's use of hydrocodone was for any purpose other than to palliate the effects of a painful physical condition, or was undertaken except pursuant to a legal prescription.

6. Concerning the presence of Valium in Kaufman's urine and his admitted use of that drug, the record simply lacks sufficient evidence on which to base any pertinent findings. There is, for starters, no clear and convincing evidence as to what Valium is. While the undersigned knows that Valium is a commonly prescribed sedative often used to treat anxiety and insomnia, among other things, his knowledge is not based on evidence in this record and thus findings to this effect cannot properly be made. Even if such findings were authorized, as being, for example, matters of common knowledge, the assumed facts would be consistent with Kaufman's statement to Dr. Marks that he had been taking two pills to fall asleep at night. In short, there is no clear and convincing evidence that Kaufman's use of Valium was illicit or improper.

7. Regarding the use of cannabis, Kaufman testified at hearing that he smoked pot from time to time——though not regularly and never at or before work——and had done so about one month before he first saw Dr. Marks. This credible, uncontradicted testimony is consistent with what Kaufman told Dr. Marks when confronted by the latter with the urine test result, and the undersigned accepts it as true. A paucity of evidence precludes additional findings regarding Kaufman's use of marijuana.

8. No proof was adduced, for example, as to what marijuana is or how it affects the user. While these matters might be commonly known, the undersigned cannot properly make fact findings about them without evidence of record. Of greater importance is that no evidence exists as to what effects, if any, the occasional, off-duty use of marijuana would typically have on the professional performance of an occupational therapist; on this the undersigned could only speculate.6 Owing to the lack of evidence, therefore, the undersigned is not clearly convinced that Kaufman's sporadic use of marijuana ever rendered him unable to practice occupational therapy safely and skillfully, or might someday do so.

9. Kaufman next saw Dr. Marks on June 3, 2004. During this visit, Kaufman made several admissions, according to Dr. Marks. Allegedly, Kaufman told Dr. Marks that he (Kaufman) had an "addiction problem" and feared discontinuing the medication, from which he had once attempted to withdraw, spending 15 hours in bed feeling bad.

10. Even accepting Kaufman's out-of-court declarations as truthful statements, the admissions in question are not especially probative. First, there is no evidence establishing that Kaufman is competent to diagnose an "addiction problem" from a clinical or medical perspective; the undersigned must assume, therefore, that if Kaufman used the term "addiction

    problem," he used it in a nontechnical sense. As a nontechnical term, "addiction problem" is ambiguous——and Kaufman was not asked at hearing to explain what he had meant by it. Indeed, it is not even clear what Kaufman supposedly admitted being addicted to. In any event, the undersigned does not accept Kaufman's putative out-of-court statement as clear and convincing proof that Kaufman had a clinically diagnosable mental or physical condition relating to addiction or dependency. Rather, as found above, Kaufman was likely able to perform life's ordinary activities without using a chemical to make it through the day.

11. Kaufman's alleged statements about suffering from withdrawal are simply too ambiguous to constitute clear and convincing proof of relevant facts. It is not clear, for example, what "medication" Kaufman was supposedly withdrawing from. Assuming that the medication in question was the painkiller or the sedative he had been prescribed, the fact that Kaufman had wanted to stop taking the medication (perhaps because of addiction fears) but was afraid to do so (perhaps because unpleasant symptoms would reappear) and was having a hard time quitting would seem neither unique nor alarming, at least on this record, which is devoid of any evidence demonstrating that the use of a prescription pain medication and/or sedative in accordance with a doctor's orders necessarily

    would render a licensee unable to practice occupational therapy safely and skillfully. Indeed, there is no evidence as to what effects, if any, the use of hydrocodone and/or Valium——even longtime or addictive use——would have on the professional performance of an occupational therapist.

12. Dr. Marks also reported that on June 3, 2004, Kaufman had told him that his (Kaufman's) wife had said that Kaufman was "acting weirdly." This alleged statement of Kaufman's wife—— which Dr. Marks relied upon in diagnosing Kaufman——is hearsay for which no exception was shown.7 Because there is no other competent proof that Kaufman had acted "weirdly," the wife's purported hearsay statement cannot be accepted as evidence for the truth of that assertion.

13. It is undisputed that on June 3, 2004, Kaufman filled out and signed PRN's "Chemical Dependency Advocacy Contract" (the "PRN Contract") in which, among other things, he pledged to abstain from using any mood altering substances without an appropriate prescription, agreed to receive ongoing therapy from Dr. Marks, and consented to submit to random drug tests. This PRN Contract was never signed by PRN and thus appears not to have taken effect. Indeed, Kaufman testified at hearing that he had revoked or rescinded the agreement before it became binding, although there is no evidence that he did so in writing. In any

    event, the fact that Kaufman executed the PRN Contract constitutes an admission that Kaufman had some sort of problem.

14. The admission is an ambiguous one, however, because by the time Kaufman signed the PRN Contract, he clearly did have a big problem——with the Department, which could (and later did) take away his professional license if he failed to cooperate with PRN. On the instant record, it is as likely that Kaufman signed the PRN Contract as an expedient means of forestalling threatened disciplinary action as that he signed the document acknowledging that he needed help with a chemical dependency problem. Consequently, the PRN Contract does not clearly convince the undersigned that Kaufman was, in fact, dependent on a chemical.

15. After this, Kaufman saw Dr. Marks twice more, on June 11 and June 22, 2004. During these visits, Kaufman denied having chemical dependency problems. Dr. Marks did not accept these statements as truthful, but rather concluded that Kaufman

    was in "denial." Dr. Marks diagnosed Kaufman as being dependent on pain medications and marijuana. Dr. Marks conceded at hearing, however, that Kaufman did not meet the diagnostic criteria specified in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) for cannabis dependence. He did not identify the diagnostic criteria used in their place.

16. Kaufman then stopped seeing Dr. Marks and was referred to a psychiatrist named Joseph Altieri. Dr. Altieri examined Kaufman and concluded, as he testified at hearing, that Kaufman did not meet the diagnostic criteria for chemical dependency. Instead, according to Dr. Altieri, Kaufman suffered from an adjustment disorder with mixed emotional features (i.e. anxiety and depression),8 and presented with a history of sporadic marijuana usage, and a history of prescription narcotics use for various medical conditions.

17. Resolving a conflict in the evidence, the undersigned finds that Dr. Altieri's diagnosis is more credible than Dr. Marks's. Dr. Marks's opinions about Kaufman's condition suffer in comparison to Dr. Altieri's largely (though not exclusively) because Dr. Marks relied upon many facts for which there is no competent evidence in the record, e.g. the complaints about Kaufman that were purportedly made to PRN, and Kaufman's wife's alleged out-of-court assertion that Kaufman had been acting "weirdly."9 In contrast, Dr. Altieri's diagnosis is more consistent, the undersigned finds, with the persuasive evidence in the record.10

18. Accordingly, it is found that the evidence fails clearly and convincingly to prove that Kaufman has or had a diagnosable condition known as chemical dependency.

    Ultimate Factual Determinations

    
    

19. There is no persuasive evidence that Kaufman, as a matter of historical fact, ever failed to practice occupational therapy with reasonable skill and safety to patients. Consequently, the undersigned is not (and could not be) clearly convinced that, at any time he was on duty, Kaufman was actually unable to practice occupational therapy with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.11

20. Kaufman suffered, and might continue to suffer, from a variety of illnesses and/or mental or physical conditions. These include kidney stones, insomnia, anxiety, and depression. There is no clear and convincing evidence in the record, however, that any of these conditions has rendered, or is reasonably likely to render, Kaufman unable to practice occupational therapy with reasonable skill and safety to patients. In this regard, the evidence is lacking both as to

    (a) the effects of these conditions, if any, on Kaufman's ability to practice occupational therapy and (b) the level of performance that constitutes "reasonable skill and safety to patients," which makes it impossible to determine whether any of Kaufman's "disabilities" might ever make him unable to meet the requisite standard of conduct.12

21. The evidence is undisputed that Kaufman has used legal prescription medications as well as marijuana. There is no clear and convincing evidence in the record, however, that Kaufman's use of these substances has rendered, or is reasonably likely to render, Kaufman unable to practice occupational therapy with reasonable skill and safety to patients. In this regard, the evidence is lacking as to: (a) the likelihood that Kaufman eventually would be under the influence of any such substance while on duty13; (b) the effects of these substances, if any, on Kaufman's ability to practice occupational therapy; and (c) the level of performance that constitutes "reasonable skill and safety to patients," making it impossible to determine whether the use of any of these substances might ever make Kaufman unable to meet the requisite standard of conduct.

22. It is determined that the evidence fails clearly and convincingly to prove that Kaufman in fact meets the criteria for discipline set forth in Section 468.217(1)(t), Florida Statutes.14

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569, and 120.57(1), Florida Statutes.

24. Section 468.217(1)(t), Florida Statutes, under which Kaufman was charged, provides in pertinent part as follows:

    1. The following acts constitute grounds for denial of a license or disciplinary action[:]

       
       

       * * *

       
       

       (t) Being unable to practice occupational therapy with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel an occupational therapist or occupational therapy assistant to submit to a mental or physical examination by physicians designated by the department. The failure of an occupational therapist or occupational therapy assistant to submit to such examination when so directed constitutes an admission of the allegations against him or her, upon which a default and final order may be entered without the taking of testimony or presentation of evidence, unless the failure was due to circumstances beyond his or her control. An occupational therapist or occupational therapy assistant affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice of occupational therapy with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against an occupational therapist or occupational therapy assistant in any other proceeding.

       
       

25. Because "[n]ot everything that impairs or interferes with a practitioner's ability renders safe and skillful practice impossible or even unlikely[,]" a licensee's guilt under Section 468.217(1)(t) is not established unless and until there has been

    a finding, "as a fact[,]" of "true inability" on the licensee's part to practice with reasonable skill and safety to patients. See Lortz v. Department of Health, 700 So. 2d 383, 384 (Fla. 1st DCA 1997).

26. A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Florida Real Estate Commission,

    281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the Department must prove the charges against Kaufman by clear and convincing evidence. Department of Banking

    and Finance, Div. of Securities and Investor Protection v. Osborne Stern & Co., 670 So. 2d 932, 935-36 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Department of Business & Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

27. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the

    witnesses must be lacking in confusion as to the facts in issue. 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.

    
    

    Id. The Florida Supreme Court later adopted the fourth district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

    denied, 599 So. 2d 1279 (1992)(citation omitted).

    
    

28. The findings of fact set forth hereinabove, which followed from the application of Section 468.217(1)(t), Florida Statutes, to the evidence of record as viewed through the above- stated standard of proof, are dispositive.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Kaufman not guilty of inability to practice occupational therapy with reasonable skill and safety to patients due to

intoxication, chemical dependency, or any other mental or physical condition.

DONE AND ENTERED this 5th day of April, 2005, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 5th day of April, 2005.

ENDNOTES

1/ To be clear, the complaints to PRN comprised out-of-court statements for which no exception to the hearsay rule was shown to apply. If offered for the truth of the matters asserted to PRN, such complaints would be inadmissible over objection in a civil action. In this administrative proceeding, evidence of the substance of such complaints might have been admissible, nonetheless, to supplement or explain other evidence, see § 120.57(1)(c), Fla. Stat., but as it happened, no other evidence of the facts asserted in the complaints was offered, and hence there was nothing to explain or supplement with hearsay.

Moreover, even if there had been such other evidence, there was no persuasive proof of the substance of the complaints to PRN,

e.g. the testimony of the person(s) to whom the complaints had been made. At bottom, therefore, to the extent that Dr. Marks (or any other witness whose knowledge of the complaints was

secondhand at best) alluded to the substance of the complaints to PRN, such testimony cannot be relied upon as proof of the truth of the matters asserted by the non-testifying complainants.

2/ Thus, it cannot be found, on the instant record, that Kaufman ever failed to practice occupational therapy with skill and safety to patients or behaved at work in such a way as to suggest that he was impaired, intoxicated, or otherwise under the influence of any type of material.

3/ At hearing the Department was required to prove inculpatory facts by clear and convincing evidence. Kaufman, in contrast, was not obligated to prove any exculpatory facts, much less to prove them by clear and convincing evidence. Henceforth, unless otherwise stated, affirmative findings of an exculpatory nature are supported by at least a preponderance of evidence, though not necessarily by clear and convincing evidence.

4/ In his testimony and also in his written report dated July 27, 2004, which latter is in evidence as Petitioner's Exhibit 2, Dr. Marks referred repeatedly to remarks that Kaufman purportedly had made to him (Dr. Marks) during the course of treatment. These out-of-court statements of Kaufman are hearsay if offered for the truth of the matters asserted, but——because the Department offered the statements against Kaufman——they are hearsay that would be admissible over objection in a civil action as adverse party "admissions" pursuant to § 90.803(18), Fla. Stat. Alternatively, Kaufman's out-of-court statements to Dr. Marks might be admissible as statements for purposes of medical diagnosis or treatment, which fall within another exception to the hearsay rule. See § 90.803(4), Fla. Stat.

Thus, Dr. Marks's testimony about what Kaufman purportedly said to Dr. Marks is competent (though not necessarily persuasive or clear and convincing) proof in this proceeding of the truth of Kaufman's purported assertions. It should be added that when Dr. Marks testified about Kaufman's out-of-court statements, he did so not as an expert witness (for no special expertise is required to remember and report what someone was heard to have said), but rather as a regular fact witness.

5/ Dr. Marks testified that Kaufman had never showed him a prescription, but he also acknowledged that he (Dr. Marks) had never asked to see one.

6/ The undersigned knows, of course, that marijuana use violates the criminal law and subjects the user to criminal prosecution.

It should be emphasized, however, that the charges against Kaufman in this case are not based on allegations of criminal misconduct or conviction. For the purposes of this proceeding, therefore, it is largely irrelevant that marijuana use is a crime. The undersigned says "largely" irrelevant because the illegality of marijuana use does distinguish Kaufman's pot smoking from his taking of hydrocodone and Valium, which latter, unlike cannabis, can be used legally for legitimate medical purposes, as Kaufman in fact used them. Although the Department made no attempt to prove that marijuana cannot be legally prescribed as medicine in the State of Florida, the undersigned believes that this fact is sufficiently well known that no proof thereof was necessary. Moreover, Kaufman's testimony makes it clear that his use of marijuana was strictly recreational. At bottom, then, Kaufman's marijuana use, which was illegal and non-medicinal, is more troublesome, in the present context, than his use of the prescription medications.

7/ To be more accurate, the statement of Kaufman's wife is hearsay (her statement) within hearsay (Kaufman's statement). While Kaufman's hearsay statements to Dr. Marks are admissible as admissions (when offered against Kaufman), or perhaps as statements for purposes of medical diagnosis or treatment, Kaufman's wife's statements are not admissions (because she is not a party) or diagnostic statements, even when repeated by Kaufman.

8/ Dr. Altieri explained that Kaufman was having a mood disturbance (depression) and anxiety disturbance in response to a clear psychosocial stressor, namely the suspension of his license to practice occupational therapy.

9/ While an expert witness can rely upon hearsay in formulating his opinions, he cannot simply be a conduit for introducing inadmissible evidence, directly or indirectly, into the record. See, e.g., Hastings v. Rigsbee, 875 So. 2d 772, 778 (Fla. 2d DCA 2004); State v. DuPont, 659 So. 2d 405, 406 n.2 (Fla. 2d DCA

1995), rev. denied, 666 So.2d 144 (Fla. 1995), cert. denied, 517

U.S. 1190 (1996). When an expert relies upon hearsay or other facts that are not established by competent proof at hearing, as here, his opinions necessarily lose credibility.

10/ Again, it was not Kaufman's burden to present clear and convincing (or any other kind of) evidence of an accurate

psychiatric diagnosis or anything else. It was, rather, the Department's burden to prove the alleged condition that allegedly has rendered Kaufman unable to practice skillfully and safely. The Department's proof regarding Kaufman's alleged mental or physical condition was not clear and convincing. The findings above are intended to help explain why the fact-finder has found the Department's expert testimony wanting.

11/ If, on any given occasion, Kaufman had attempted to practice occupational therapy while truly unable to do so skillfully and safely, then, on such occasion, he necessarily would have failed to practice with reasonable skill and safety, for logically one cannot do what one is unable to do. (Of course, proof that Kaufman had failed in a particular instance to practice with reasonable skill and safety (of which there is none in this record) would not, without more, establish that Kaufman was unable to practice skillfully and safely, much less that such inability (if shown by other evidence, which it was not here) was the result of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.) Thus, the absence of proof of historical failure eliminates the issues of inability and causation with regard to past on-the-job performance.

12/ The statutory phrase "reasonable skill and safety to patients" amounts to a standard of conduct against which a licensee's performance must be measured. In the context of this offense, the standard of conduct is essential to defining the requisite severity of disability warranting discipline. This is because all licensees, at some point, have one or more of the enumerated disabilities, which, remember, include any illness (e.g. a cold, sore throat, infection, etc.) and any physical condition (e.g. headache, allergy, pulled muscle, fatigue, etc.). It is a matter of common knowledge derived from ordinary experience that all human beings experience such conditions from time to time, if not on a regular basis. Yet the statute was obviously not designed to authorize punishment for any licensee who has, say, the physical condition known as a headache. The statute applies only when the condition is so severe that, as a result thereof, the affected licensee is unable to meet the prescribed standard of conduct, i.e. to perform "with reasonable skill and safety to patients."

Where the applicable standard of conduct is not explicitly fixed by statute or rule but rather, as here, depends on broad concepts (e.g. "reasonable skill and safety"), the prosecuting

agency must either (a) demonstrate that the licensee's conduct was so patently unreasonable that persons of common experience would instantly recognize it as such or (b) adduce some evidence from which the trier of fact can conceptualize a standard of conduct in the form of the action of a "reasonable licensee" under the same or similar circumstances. See generally, e.g., Purvis v. Department of Professional Regulation, Bd. of Veterinary Medicine, 461 So. 2d 134, 137 (Fla. 1st DCA 1984).

Here, the Department did neither. This evidential deficiency alone is fatal to the Department's case, for unless the fact- finder knows (via clear and convincing evidence of record) what reasonably skillful and safe occupational therapy practice entails, it cannot determine (without speculating or relying on resources outside the record, either of which would be improper) whether the licensee was unable to perform at that level.

13/ There is no clear and convincing evidence that Kaufman ever went to work while under the influence of any substance, and none suggesting that he likely would. The undersigned concludes that where intoxication, or being under the influence of a substance, is the alleged disability——as opposed to a chronic diagnosable condition such as alcoholism or cannabis dependency (which would subsist throughout normal working hours, even when the licensee is sober)——there needs to be clear and convincing evidence of a link between the substance's use and the licensee's occupational performance. This is based on the premise that it cannot possibly have been the legislature's intent to subject to discipline every licensee who, for example, has a few drinks on the weekend while off duty, or who, to take another example, is given nitrous oxide at the dentist's office. While such licensees might be temporarily unable to practice skillfully and safely, unless there is evidence showing that they likely would attempt to practice in such a condition, it would be absurd to interpret § 468.217(1)(t), Fla. Stat., so as to reach them. Although there is language in Major v.

Department of Prof. Reg., Bd. of Medicine, 531 So. 2d 411, 413 (Fla. 3d DCA 1988), which could be read in support of such an unlikely interpretation, the undersigned strongly doubts that the Third DCA meant to put such a gloss on the statute, and at any rate the Department has not taken so extreme a position in this case.

14/ While denominating a statement a "finding of fact" or "conclusion of law" is not determinative of its nature, the undersigned deliberately has placed this finding here on the conviction that it is, in reality, an ultimate factual

determination. First, a negative finding (e.g. "the evidence fails to prove . . . ") is fundamentally a "finding of fact," not a legal conclusion. See Goin v. Commission on Ethics, 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995)("By stating that he was not persuaded, the hearing officer engaged in the act of ascribing weight to the evidence."). Second, the matter of guilt or innocence——whether the accused party violated a statute or rule, as charged——is a question of ultimate fact to be decided in the context of each alleged violation. Id; see also, e.g., McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Third, a determination of guilt under § 468.217(1)(t), Fla. Stat., must be predicated upon a finding, as fact, that the licensee was truly unable to practice with reasonable skill and safety to patients. See Lortz v. Department of Health, 700 So. 2d 383, 384 (Fla. 1st DCA 1997).

The undersigned is aware that the courts in Lortz, 700 So. 2d at 384, and Major, 531 So. 2d at 413, referred to the guilt- determination of inability to practice with reasonable skill and safety to patients as a "legal conclusion." While the undersigned believes, based on the authorities just cited, that these courts used the wrong label in this regard, the point is academic here because, to be very clear, the undersigned has not found, affirmatively, that Kaufman is guilty or innocent of being unable to practice skillfully and safely, but rather has determined, negatively, that the evidence fails clearly and convincingly to prove the elements of the charged violation.

This negative finding regarding the insufficiency of the evidence is undeniably a factual determination based on the weighing of the evidence. See Goin, supra. And as the First DCA made clear in Lortz, 700 So. 2d at 384, without a fact finding of true inability to practice with reasonable skill and safety, which is an element of the offense, the "legal conclusion" of the licensee's guilt on the charge of meeting the criteria prescribed in § 468.217(1)(t) cannot be drawn.

COPIES FURNISHED:

Robert E. Fricke, Esquire Paula A. Willis, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Robert Rappell, Esquire Craig M. Rappel, Esquire Rappell & Rappell

1515 Indian River Boulevard, Suite A210 Vero Beach, Florida 32960-7103

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dr. John O. Agwunobi, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 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: 05-000005PL

Orders for Case No: 05-000005PL