The Issue The central issue in this case is whether the Petitioner's document filed with the Division of Administrative Hearings on January 8, 1992, which was initially construed to be a petition challenging an existing rule, and which was assigned to the undersigned on January 16, 1992, should be dismissed as argued in the motion to dismiss filed by the Respondent on January 28, 1992.
Findings Of Fact Petitioner is a second year medical student currently enrolled at the University of South Florida, College of Medicine, in Tampa, Florida. Petitioner is a licensed optometrist in the State of Florida and graduated valedictorian from the University of Houston, College of Optometry in May, 1990. In Florida, the Board of Optometry (Board) retains licensed optometrists who write the questions for the licensing examination administered by the Board. In some instances, the same examination drafters are retained by the Board to administer the practical portions of the examination. Thus, the drafter of the questions may proctor the examination given to examinees. Further, in some instances, the examination drafters have working in their employ unlicensed optometrists or optometry students who receive training from such employer. When that occurs, the unlicensed employee may receive assistance from the employer not available to others who would seek licensure by examination. This appearance of assistance or potential assistance is created because the drafter of the examination is also the grader and employer of the unlicensed person who must be tested for licensure. It is the Petitioner's position that licensed optometrists who provide both the content of the written test and administer the practical portions of the examination for licensure should not also serve as mentor or employer of those seeking licensure by the same examination. Petitioner has not cited an existing rule that regulates the activities described. Rule 21Q-4.006, Florida Administrative Code, adopts by reference Rule 21-11.014, Florida Administrative Code, as the rule governing examination security and monitoring for the Board. That rule provides, in pertinent part: Any individual found by the Department or any board within the Department to have engaged in conduct which subverts or attempts to subvert the examination process may have his or her scores on the examination withheld and/or declared invalid, be disqualified from the practice of the profession, and/or be subject to the imposition of other appropriate sanctions by the Department or, if administered by a board within the Department, by the applicable board. Conduct which subverts or attempts to subvert the examination process includes: Conduct which violates the security of the examination materials. . . Petitioner has not alleged that anyone violated the foregoing rule. Rather, Petitioner maintains that allowing the activities described above to continue gives the appearance of impropriety or increases the potential for impropriety.
The Issue Whether the license, No. 1454, issued to licensee should be revoked, annulled, withdrawn or suspended.
Findings Of Fact The Florida State Board of Chiropractic Examiners filed an Administrative Complaint against licensee Stanley Turner, D.C., who holds license number 1454. Count I alleged Respondent made sexual advances toward four patients. Count II alleged that Respondent made improper sexual advances toward employees. Count III alleged that Respondent has been addicted to the habitual use of narcotics, stimulants, or other habit-forming drugs since July 1, 1975. Count IV alleged that Respondent made improper sexual advances on a patient under the guise of necessary chiropractic treatment. Count V alleged that Respondent offered and administered medicines and drugs to two patients. Count VI was dropped at the hearing. Count VII was dropped at the hearing. Count VIII alleged that the foregoing Counts constitutes unprofessional conduct. Respondent denied each of the allegations of the Petitioner. The testimony of the various women who testified against Dr. Turner, together with the testimony of the women who testified for Dr. Turner, does not establish the fact that "improper sexual advances" were actually made by the Respondent, Dr. Turner. The nature of the practice of acupuncture and of the practice of chiropractic is such that the procedures themselves could be misleading as to the intent of the practitioner. Testimony of six medical doctors and two dentists that they had filled prescriptions for the Respondent, Dr. Turner, which prescriptions were for various drugs, Valium, Darvocet, Milhouse, Percodan, Tylenol, Robaxin, was coupled with their testimony that they issued these drugs through "professional courtesy" without ordinary examinations of the patient and that in fact Dr. Turner did suffer from a variety of ills including a back injury, an accident with a horse, and "hangovers." The evidence submitted does not establish that the Respondent took all of these drugs himself or was addicted to the habitual use of narcotics, stimulants or the habit-forming drugs. It does establish that drugs were secured by Dr. Turner in a manner and amount that could be and perhaps was embarrassing to those doctors who wrote the prescriptions for Respondent. The evidence does not support a finding that drugs were offered or administered to patients and employees and other persons. The testimony does establish that the Respondent was guilty of unacceptable conduct inasmuch as the testimony as a whole establishes the fact that Dr. Turner did take advantage of the medical community in requesting prescriptions and that his conduct toward his clients and employees was casual and at times undignified.
Recommendation Give Respondent Stanley Turner a public reprimand then dismiss the complaint. DONE and ORDERED this 7th day of April, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Charles F. Broome, Esquire Post Office Box 729 Titusville, Florida 32780 =================================================================
The Issue Whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician, having been issued license number ME 0020714 by the State of Florida. By Final Order entered September 5, 1986, the Board of Medical Examiners, now known as the Board of Medicine, revoked the license to practice medicine of Celestino De La Heria Ledesma (hereinafter "De La Heria"). The revocation of De La Heria's license was predicated, in part, on findings that De La Heria was not competent to perform plastic surgery. Specifically, the Board's Final Order reflects that De La Heria treated a patient with "cupped" ears by suturing that patient's ears to the patient's head. At all times material hereto, Respondent practiced medicine at her office located at 1995 East Fourth Avenue, Hialeah, Florida. Respondent purchased the building in 1982. Respondent had her office, consisting of two examining rooms, an office and a bathroom, on one side of the building. At the front entrance to Respondent's office, was a waiting room for patients. Until about 1987, Respondent lived in the other half of the building that housed her office. That portion of the building consisted of three rooms of moderate size, an office, and two bathrooms. There was an additional exterior door, which opened onto Fourth Avenue, in what was initially the residential side of Respondent's office building. Respondent has known De La Heria since about 1951, when they met as students at the University of Havana, in Cuba. Respondent was subsequently the physician for De La Heria's former wife and his daughters. Additionally, De La Heria's family had visited Respondent in her home. Prior to October 1, 1987, Dr. Carlos Garrido, a practicing physician in the Miami area, De La Heria, and a mutual friend of theirs, approached Respondent to discuss renting from her the space in which she lived in order to open a plastic surgery clinic. One meeting occurred among those four individuals. No formal arrangement resulted from that meeting. Subsequent to that meeting, Respondent and De La Heria had discussions about De La Heria renting the space from Respondent to open a plastic surgery clinic. Respondent knew that De La Heria either was having problems with his medical license or no longer had a license to practice medicine. She told De La Heria that he would have to obtain someone's medical license in order to operate the plastic surgery clinic and in order to lease space for a medical office from her. De La Heria produced a copy of the medical license of Dr. Garrido. Respondent moved out of the space in which she was living. On October 1, 1987, Respondent entered into a business lease agreement, not with De La Heria and not with Garrido but with De La Heria's son, in which Respondent leased the space in which she had previously resided to De La Heria's son for the sum of $600 per month. The premises being leased were to be used to establish a plastic surgery clinic, although the lease itself referred to the premises being used as a medical clinic. No evidence was offered to show that De La Heria's son was a licensed physician. De La Heria was not a party to the lease agreement, and Garrido was not a party to the lease agreement. Although Garrido never practiced medicine at that location, an occupational license for the leased premises was obtained in Garrido's name, the electrical service was established in Garrido's name, and telephone service was obtained in De La Heria's name. The copy of Garrido's medical license was hung in De La Heria's office, and a sign was placed on De La Heria's desk indicating that he was a doctor. Only Respondent's name appeared on the outside of the building. After October 1, 1987, De La Heria began to practice medicine in the portion of the premises leased to De La Heria's son by Respondent. Respondent knew that De La Heria was practicing medicine although Respondent knew at the time that De La Heria was either having problems with his medical licensure or no longer had medical licensure. Respondent specifically questioned De La Heria about his licensure problems when the two passed in the waiting room area that they shared. On a prior occasion, Respondent discussed De La Heria's licensure problems with his ex-wife. On one occasion subsequent to October 1, 1987, Garrido stopped by Respondent's office building to visit and made a comment to Respondent about De La Heria's lack of licensure. By Respondent's own admission, she knew something was not proper when De La Heria had the lease placed in his son's name. After October 1, 1987, Respondent's office hours were Monday, Wednesday, and Friday, from 2:00 p.m. until 7:00 p.m. De La Heria's office was open in the mornings, Monday through Friday. Although Respondent's office hours were in the afternoon, on occasion she would come to the office in the morning. When she did, she would enter through the waiting room which she shared with De La Heria. When she did, she saw patients sitting in the waiting room waiting for De La Heria. On those occasions, when she saw De La Heria in the office, he was wearing surgical scrubs. After October 1, 1987, Orfelina Guerra, Respondent's employee who performed receptionist/secretarial duties for Respondent in the afternoons, requested Respondent's permission to work for De La Heria in the mornings, answering the telephones. Respondent gave her permission. After October 1, 1987, only De La Heria practiced medicine in the leased portion of Respondent's building. Respondent knew that no other physician was practicing medicine in the leased portion of her building. Respondent knew that De La Heria was treating patients in the leased portion of her building. In early 1988, the Department of Professional Regulation was advised that De La Heria was practicing medicine at 1995 East Fourth Avenue, in Hialeah, Florida, while De La Heria's license was in a revoked status. Georgina Jorge, an investigator with the Department assigned to the matter, went to Respondent's office building. On the exterior of the building, she observed Respondent's name along with two telephone numbers. She then attempted to telephone De La Heria at one of those telephone numbers and was advised that he was not available at that particular moment. She next contacted Maria Zerquera, a police officer with the State Attorney's Office, and requested that Officer Zerquera go to De La Heria's office in an "undercover" capacity in order to determine whether De La Heria was practicing medicine without a license. Zerquera telephoned Respondent's office to arrange an appointment with De La Heria. Orfelina Guerra answered the telephone and advised the caller to call back using a different telephone number. When Zerquera did so, Orfelina Guerra answered that telephone and gave Zerquera an appointment to see De La Heria on February 19, 1988, at 10:30 a.m. When Zerquera arrived for her appointment, there were patients waiting in the waiting room. A short time thereafter, De La Heria came into the waiting room, introduced himself to Zerquera as "Dr. De La Heria" and took her into the inner office area. During the course of this appointment, De La Heria represented to Zerquera that he could remove a scar on Zerquera's right eye and could "fix" Zerquera's neck. He offered to do the right eye immediately free of charge and suggested that Zerquera return later to have the work performed on her neck for which he was going to charge "a couple of thousand dollars". Officer Zerquera was taken by De La Heria into an operating room, which appeared to be fully equipped for surgery. In the operating room, Zerquera saw gauze with blood on it from an eye operation De La Heria had just performed on another woman. When Officer Zerquera identified herself to De La Heria, the other investigators waiting outside entered De La Heria's office. While there, they found in De La Heria's office four blank prescriptions which had previously been signed by the Respondent. De La Heria directed Orfelina Guerra to contact Respondent who then came to the office. Respondent admitted that the four prescriptions had been signed by her in blank. She stated that she had left about six or seven presigned blank prescriptions because she was going on vacation and some of her patients might need medication on an emergency basis. Only four of the "six or seven presigned blank prescriptions were found. Only licensed physicians are authorized by law to issue prescriptions. The individual who makes the judgment as to what medication is necessary, based upon seeing the patient and gathering data, is practicing medicine. Even in instances where patients come in with an established diagnosis, medical evaluation is necessary to determine whether the person continues to require the same medication. Each time a prescription is given, a medical judgment is made. Delegating the prescribing activity to unlicensed individuals can result in harm to the patient. The practice of plastic surgery is the practice of medicine. The prescription of plastic surgery for a human deformity is the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT a Final Order be entered finding Respondent guilty of the allegations contained within the Amended Administrative Complaint filed against her and permanently revoking Respondent's license to practice medicine in the State of Florida. DONE and ENTERED this 22nd day of August, 1989, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-6469 Petitioner's proposed findings of fact numbered 1-9 and 12-26 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 10 has been rejected as not being supported by the evidence in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as being unnecessary for resolution of the issues in this cause. Petitioner's proposed finding of fact numbered 27 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or a conclusion of law. COPIES FURNISHED: Dorothy Faircloth Executive Director, Board of Medicine Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Stephanie A. Daniel, Chief Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ana D. Hernandez, M. D. 1995 East 4th Avenue Hialeah, FL 33010
Findings Of Fact Tommy J. Dorsey is licensed as a dentist by the Petitioner and was so licensed at all times relevant hereto. During the period August-September 1978 to June-July 1979 Priscilla Mae Young was employed by Respondent as a dental assistant. Miss Young worked part- time for Respondent while doing her internship at Southern College and, upon graduation as a dental assistant, she worked full time for Respondent until she was fired in July 1979. Miss Young was not licensed as a dental hygienist or otherwise by the Petitioner during the time she worked for Respondent. During most of the time Miss Young worked for Respondent, Respondent also employed Errol A. Cherry, a licensed dentist, on a part-time basis (two and one-half days per week). While Dr. Cherry worked for Respondent, he dated Miss Young occasionally but they split up before Miss Young departed Respondent's employ in July 1979. Miss Young testified that she and the other unlicensed assistants took all impressions for dentures and partial dentures during the time she was employed by Respondent. She also testified she performed other services for Respondent, such as removing sutures, signing prescriptions, and taking and developing X-rays, all with Respondent's knowledge and consent and as part of her duties. Evidence respecting these services is disregarded as not encompassed within the Administrative Complaint. Miss Young also testified she discussed these unauthorized functions she was performing with Dr. Cherry and, finally, with Respondent. When she refused to come to work on 5 July 1980, after being denied permission to take that day off by Respondent, Miss Young was fired. Dr. Cherry testified that he never saw Miss Young take impressions, never heard Respondent direct her to do so, or talk to her about performing these services. Respondent's wife, Virgie Dorsey, is a licensed dental hygienist who works in the office primarily as a receptionist. She testified she never saw Miss Young take final dental impressions but believes that on occasion Respondent allowed his assistants to take study impressions. Respondent testified that he never permitted unlicensed personnel to take final impressions or sign his name to prescriptions. He dictated the description of the work desired on these lab prescriptions for the assistant to write down, then he would sign the prescription. Respondent occasionally allowed his assistants to take study impressions. Respondent described Miss Young as very aggressive and one he had to reprimand on three occasions, two of these occasions for signing prescriptions. When she asked for 5 July 1980 off, Respondent told her if she did not come to work that day she would be dismissed. Respondent testified he was relieved to have this excuse to fire Miss Young. Miss Young is a credible witness. On the other hand, the testimony of Respondent and his two other assistants is also credible.
The Issue Whether Dunlop violated Rules 21P-1.012 and 21P-6.07, Florida Administrative Code, by permitting an unlicensed person to use his license for the purpose of dispensing optics.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Dispensing Opticians take no action against the license of Francis (Frank) Dunlop. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32304 Thomas F. Lang, Esquire Suite 302 801 North Magnolia Avenue Orlando, Florida 32803 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF DISPENSING OPTICIANS In the Matter of the Suspension or revocation of the License to Practice the Trade or Occupation of Dispensing Optician in this State of FRANCIS NELSON DUNLAP DOAH CASE NO. 77-2291 As a duly licensed dispensing optician authorized to supervise the preparing, fitting and adjusting of optical devices at Vent-Air Contact Lens Service, Florida National Bank Building, Jacksonville, Florida /
