Findings Of Fact The Respondent, Adolph B. Cone, at all times pertinent to these proceedings, held a medical doctor's license issued by the Petitioner, valid in the State of Florida. The Petitioner is a regulatory agency charged with the licensing, regulation and disciplining of those persons licensed to practice medicine in the State of Florida. The Respondent, at all time material hereto, has been engaged in the general practice of medicine at Jacksonville Beach, Florida. The Respondent has resided in Jacksonville Beach, Florida, since 1939, and has been licensed to practice medicine in the State of Florida for 43 years. He is 69 years of age, divorced and the father of 4 children, the oldest of whom is 22 years of age and attending the University of Florida Medical School, and the youngest of whom is gravely ill with cancer (hemangiocytoma). The Respondent continues to maintain his medical practice and contributes substantially to the support of his children. On or about January 21, 1971, a Final Order was entered by the Board of Medical Examiners suspending the Respondents license to practice medicine until such time as he could demonstrate his competency to resume active practice. In connection with that disciplinary proceeding, Joseph Virzi, M.D. first encountered Dr. Cone as a psychiatric patient in November of 1970, when the Respondent was an inpatient at Memorial Hospital in Jacksonville, Florida. By Final Order dated July 31, 1972, the Board of Medical Examiners reinstated Dr. Cone's license on a 5 year probationary status, with one of the stipulated conditions being that he continue medical treatment under the direction of Dr. Virzi. Dr. Virzi at first treated Dr. Cone as a psychiatric patient in November of 1970, when he was at Memorial Hospital in Jacksonville due to depression, and overuse of alcohol. An additional proceeding was instituted against the doctor which culminated in a Final Order of the Board on January 31, 1973, placing his license on a 5 year probationary status, with the condition that the first 12 months of that term of the licensee would be limited to supervised practice of medicine under the personal supervision of a physician and that he continue medical treatment under Dr. Virzi's direction. The allegations in the Administrative Complaint, culminating in that Final Order of January 31, 1973, involved the Respondent's alleged abuse of alcohol which allegations were upheld and found to be true in that Final Order. Dr. Virzi continued his treatment of the Respondent as a patient and saw the patient for the last time in April of 1973. At the time Dr. Virzi discharged him, he felt that the Respondent had a characterological disorder, wherein he had difficulty accepting how he affects other people and difficulty in operating under stress with a tendency to become hostile and argumentative. Dr. Virzi found, however, that his depression at that time had been successively treated and he had undergone a complete recovery from his depression. Dr. Virzi felt that Dr. Cone had a problem with alcohol from 1970 to 1973. Dr. Virzi testified that in his opinion Dr. Cone suffers from alcoholism which is a chronic and recurrent disorder, but Dr. Virzi had not seen Dr. Cone since 1973, and could not testify regarding his more recent drinking habits and thus was unable to testify as to whether Dr. Cone has been impaired in his ability to safely and competently practice medicine due the abuse of alcohol or drugs. Similarly, although Dr. Virzi testified that Dr. Cone had a characterological disorder, his testimony was nonspecific in describing it as manifested by a suspicious nature, difficulty in personal relationships with others and a denial of any problem with alcohol. Dr. Virzi's testimony does not, within reasonable medical probability, relate any characterological disorder believed to exist in 1973 with any current impairment and with Dr. Cone's ability to safely and competently practice medicine. Subsequent to his treatment of the Respondent in 1973, Dr. Virzi, in 1973, opined that the Respondent was capable of resuming the practice of medicine at that time. It was Dr. Virzi's opinion in testifying in this proceeding, that if the Respondent does not drink or take drugs that would impair his mind, he would be able to practice medicine with reasonable skill and safety. Dr. Virzi corroborated the testimony of Dr. Cone himself, establishing that Dr. Cone has suffered from hypoglycemia, which, according to Dr. Virzi, is a rather mild impairment, but if combined with alcohol would produce more severe temporary symptoms of mental impairment, such as decreased judgment and temporary impairment of memory. The injestion of alcohol during a hypoglycemic state tends to aggravate the overt symptoms caused by the alcohol's effect on the body according to Dr. Virzi. Dr. Virzi, however, was unable to testify that Dr. Cone had taken any alcohol either in or out of the course of his practice of medicine since he last saw him in 1973. He could only speculate that had he had such information regarding more recent use of alcohol it would be consistent with his 1973 diagnosis and prognosis. Such speculation cannot serve as the basis of a finding of fact that the Respondent has abused alcohol, within times pertinent to this Administrative Complaint. The only other witness testifying regarding the issue of the Respondent's alleged abuse of alcohol was Marcelle P. Alford-Nolan. She was employed as a medical assistant in Dr. Cone's office from March, 1978, through March 1979. Ms. Nolan testified that she observed Dr. Cone intoxicated in his office on several occasions. She had, however, never observed him drinking an alcoholic beverage, but merely felt that he was under the influence of alcohol to one degree or another by observing his speech pattern, unsteady gait and general demeanor. It is established in the record, however, that during this time he was also suffering from hypoglycemic reactions which produce similar symptoms involving unsteady gait, slurred speech and sometimes impaired memory or judgment. This witness did testify she saw the Respondent in possession of alcoholic beverages in a bottle during 1977 or 1978 (she could not specifically recall when), she never observed the Respondent actually consume any alcoholic beverages on the premises of his office or at any other location however. In short, there is insufficient proof to establish that the Respondent has consumed alcohol or used any controlled substances since 1973, aside from his own testimony that he took an occasional beer or wine and there is an absence of proof that the use of alcohol or controlled substances has had any effect on his practice of medicine. The Respondent's unrefuted testimony is that his hypoglycemia is under control at the present time and he has not had a reaction in approximately the last 6 months prior to the hearing. On February 28, 1981, Drew Rose Warrener, an undercover law enforcement officer for the Duval County Sheriff's Office, made an appointment to visit Dr. Cone in his office at 4:00 p.m. that day. She appeared at Dr. Cone's office shortly prior to that time, using the name Joanne Wells. Dr. Cone was not at his office when she arrived and while she waited for him to arrive she filled out a patient information and patient history card. The patient history form included questions about her family, family illnesses or conditions as well as any illness or medical condition which she suffers or had suffered from in the past. When Mr. Cone arrived they proceeded into his medical office and she explained to Dr. Cone that she was having trouble with fatigue and staying awake in her job, that she was a dancer at a lounge and she wanted "something" (a medication) to help her dance better and stay awake. She informed the doctor that she actually had no health problems requiring treatment. Dr. Cone at first told her that he could not prescribe something for that reason, but in response to her entreaties he called a local pharmacy and inquired of the pharmacist regarding what drugs he could legally prescribe Ms. Warrener for "fatigue," questioning the pharmacist regarding which drugs were on, a "prohibited list." After consulting with the pharmacist, Dr. Cone ultimately determined that he could prescribe Ritalin and reluctantly prescribed her 15 Ritalin tablets on a non-refillable basis. Prior to prescribing the drug, he questioned her in some detail regarding her physical or medical condition and observed her appearance, her manner of speaking and her general condition, although he did not actually perform a physical examination before making the prescription. He did, as mentioned early, take a written and verbal patient history from Ms. Warrener prior to prescribing the Ritalin. Prior to departing his office, Ms. Warrener and the Respondent entered into a discussion concerning her living arrangements with the Respondent informing her that he had a vacant apartment for rent which she might wish to look at. Accordingly, he invited her across the street from his office to his apartment house to look at the vacant apartment, with the view that she might wish to rent it. Ms. Warrener declined at that time, but promised to return a short time later. She then proceeded to a nearby pharmacy to fill the Ritalin prescription. She filled the prescription at the pharmacy and then returned to Dr. Cone's medical office and was informed by his employee that he had returned home and she was directed to his apartment-house across the street. She was invited into the apartment by Dr. Cone and he proceeded to show her around the apartment, suggesting that she might be interested in living there. During the course of the conversation, Dr. Cone asked her certain questions concerning her life-style, occupation and living arrangements and suggested at one point in the conversation that she move into his apartment with him. She did not answer his question to that effect directly, but responded that she was really interested at that time in obtaining some Preludin tablets. Dr. Cone repeatedly advised her against taking such drugs, warning her that it was not healthy to do so. He ultimately went, or made a pretext of going, to his bathroom and looking through his supply of medications, informing her that he had no Preludin. After approximately 30 minutes she informed him that she had to report to her job and so she left. At the point of leaving his apartment he informed her that he might be able to obtain some Preludin for her if she came back later that night. On that same evening, at approximately 10:00 p.m., Ms. Warrener returned to Dr. Cone's apartment pursuant to his earlier invitation. As she was entering the door of his apartment he peered down the front of her blouse at her breasts which he commented upon in an admiring way. He showed her a bedroom which he offered to let her use and engaged in a conversation with her regarding her personal life, discussing to some extent her sex life, her supposed occupation as a dancer in a night club and her present living arrangements, as making a renewed offer to have her come live with him in his apartment. Dr. Cone never offered to give her drugs in return for sexual favors, but sexual ideas and inferences were expressed in his statements to her a number of times and her general response was that what she was really interested in was obtaining drugs, particularly Preludin. During the course of this visit, Dr. Cone showed her 4 pills which he described as Preludin and gave her 2 of them, although she requested all 4. These pills proved to be aspirin. During the course of this conversation, Dr. Cone repeatedly remonstrated with her concerning her ill-advised wish to obtain and take drugs. He informed her that he would give her the 2 Preludin (aspirin), but would give her no more. He finally relented to the extent of writing her a prescription for 24 Valium tablets. After receiving this prescription she left his apartment on the pretext that she had to return to her place of employment as a dancer. Dr. Cone conducted no physical or medical examination prior to prescribing the 24 Valium tablets and asked for and received no payment for this visit or prescription. Ms. Warrener was suffering no illness or condition for which Valium was medically indicated at the time. Dr. S. J. Alford testifying on behalf of the Petitioner and qualified as a expert medical witness, established that Ritalin and Valium are scheduled controlled substances pursuant to Chapter 893, Florida Statutes. Valium is a short term drug used for nervousness, anxiety and a muscle relaxer. It is a depressant type of drug which can produce sleep. It should not be used in conjunction with Ritalin. A medical examination should be performed prior to prescribing Valium which should consist of a full medical history as well as a physical examination, including examination of a patient's blood pressure, heart and lungs in order to detect any contraindications associated with the prescription, which can be dangerous for patients with certain physical conditions. Although Dr. Cone took a medical history of Drew Warrener that day, and visually examined her, listened intently to her conversation in order to check her emotional status, and observed her skin color, her conversation, tone of voice and general manner of talking, he failed to actually do an examination of blood pressure, heart or lungs which Dr. Alford established to be required by good medical practice prior to prescribing Valium.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That Dr. Adolph Cone be found guilty of a violation of Section 458.331(1)(q), Florida Statutes, and that his license as a medical doctor be suspended for one (1) year, but with that suspension held in abeyance and a one (1) year probationary term imposed in its stead provided the Respondent successfully completes, under close supervision of the board, a comprehensive continuing medical education course of the board's designation designed to further and sufficiently enlighten him on the appropriate prescribing, dispensing, administering, mixing and preparing of legend drugs, including controlled substances as a prerequisite to his reinstatement. DONE and ENTERED this 29th day of November, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. FOSH CASE NO. 81-1653 CASE NO. 8530 ADOLPH B. CONE, M.D., License No. 2225, 15 South First Street, Jacksonville, Florida 32250, Respondent. /
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, David Fialko (Fialko), has been employed by the County as a correctional officer since December 5, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Fialko. 3/Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Fialko had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of food moral character. By letter dated November 1, 1988, the Commission notified Fialko and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Fialko filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Fialko denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Fialko on December 13, 1985, at which time he admitted that he had used marijuana and cocaine. Regarding such use, the proof demonstrates that Fialko's use of cocaine occurred prior to 1983, when he was 19 years of age, and was limited to two or three occasions. His use of marijuana commenced when he was approximately 16 years of age, and continued on an occasional basis until he was 19 years of age. Subsequent to 1982, Fialko has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Fialko's background, that Fialko possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his use of marijuana and cocaine prior to 1983. The Commission's action is not warranted by the proof. In 1982, at age 19, Fialko attended and graduated from the Broward Fire Academy with the aspiration of becoming a fireman; however, due to the want of available positions and the number of applicants, he was unable to secure employment. In January 1983, recognizing that the likelihood of securing employment as a fireman was scant, Fialko entered Sheridan Vocational School to pursue a career as a medical laboratory technician. Following his graduation from Sheridan in early 1984, and his certification as a medical laboratory technician, Fialko was employed by Quality Laboratory. He remained in the employ of Quality Laboratory for over three years, until employed by the County as a correctional officer, and was recognized as an excellent employee. To date, Fialko has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two and one-half years. His annual evaluations have been above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. While Fialko, born December 10, 1983, used cocaine two or three times when he was 19 years of age and used marijuana occasionally between age 16 and 19, such use occurred approximately 7 years ago and was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character.4/ More indicative of Fialko's moral character is his continuous employment since age 16, his drive to secure an education and training at his own expense, and his excellent performance in all his endeavors. Overall, Fialko has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, David Fialko, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK 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 26th day of June 1989.
