Findings Of Fact By agreement with the prosecution Dr. Brown had sought to delay consideration of his procedural motion to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076, pertaining to the patients J.C., D.R., T.E. and K.J. The parties to that action anticipated considering the motion at the final hearing as part of the case on the merits. The hearing officer was persuaded that the procedural motion to dismiss had to be examined separate and apart from the consideration of the case on the merits as to those four patients. Consequently the motion to dismiss was entertained concerning its evidential and legal basis prior to a hearing on the merits. This led to the decision on June 9, 1992, to dismiss the action pertaining to treatment of the patients J.C., D.R., and T.E., with leave to refile at some future date. The decision to dismiss was based upon the pertinent facts and law when examined in accordance with Section 455.255(1), Florida Statutes. The motion to dismiss the action concerning treatment of the patient K.J. was denied. The reason for the dismissal was announced in the record on June 9, 1992, and memorialized in the transcript of the proceedings. It was concluded that there was not an adequate basis to institute an investigation concerning the patients J.C., D.R., and T.E.; that the Department of Professional Regulation, now the Department of Business and Professional Regulation, did not furnish Dr. Brown or his attorney with a copy of the complaint or the document that resulted in the initiation of the investigation pertaining to the three patients; and, that Dr. Brown did not have the statutorily mandated opportunity to respond to the accusations made against him related to the care that he provided those three patients. Therefore, the procedural requirements under Section 455.225(1), Florida Statutes, had not been met and the case as it pertained to the three patients was dismissed with leave to refile. The procedural requirements related to the patient K.J. had been met and it was appropriate to present the K.J. case to the Probable Cause Panel for its deliberation, unlike the circumstance with the other three patients. It was determined that the quality of consideration by the Probable Cause Panel when voting to prosecute Dr. Brown for his treatment of K.J. was adequate. Based upon the ruling directed to the treatment of patients J.C., D.R., and T.E. the Department of Professional Regulation was not allowed to proceed against Dr. Brown for the care rendered those patients. A subsequent recommended order addressed in substance the prosecutions associated with DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patient K.J.; DPR Case Nos. 011343 and 011344/DOAH Case No. 91-5325 and DPR Case Nos. 8901804, 0111385 and 0111353/DOAH Case No. 91-6358, traced the history of those cases in the preliminary statement to the recommended order and identified the prior ruling dismissing the actions pertaining to the patients J.C., D.R., and T.E. That recommended order was not an invitation to the Board of Medicine to respond to a recommendation of dismissal. The recommended order in the cases pertaining to patients other than J.C., D.R., and T.E. was entered on December 30, 1992, based upon the formal hearing conducted pursuant to Section 120.57(1), Florida Statutes, on various dates in June and July, 1992, and concluded on July 10, 1992, before the present hearing officer. On February 26, 1993, the Board entered its final order in the above- referenced cases and commented to the effect that it had approved the recommended dismissal by the hearing officer concerning the patients J.C., D.R., and T.E. with leave to refile. Neither party appealed the hearing officer's decision dismissing those counts within DPR Case No. 91-06883/DOAH Case No. 92-1076 directed to the patients J.C., D.R., and T.E. On March 8, 1993, Dr. Brown took an appeal from the final order of the Board of Medicine entered on February 26, 1993, which included the comment approving the actions by the hearing officer in dismissing the counts pertaining to the patients J.C., D.R., and T.E., but without prejudice to bring those actions again following compliance with Section 455.225, Florida Statutes. Robert C. Brown, Jr., M.D., is a licensed physician practicing in the state of Florida. He has held a license entitling him to practice in that state at all times relevant to the inquiry. At relevant times Dr. Brown has practiced medicine at 4519 Brentwood Avenue, Jacksonville, Florida, 32206. He is the sole medical practitioner of an incorporated professional practice. He has had less than 25 employees and his net worth has been not more than 2 million dollars. Dr. Brown is the only share holder in his incorporated professional association. No one else has ownership interest in the incorporated professional association. At times Dr. Brown has drawn a salary from the professional association as an employee of the professional association. His request for attorney's fees and costs are directed to the actions of the Department of Professional Regulation for its procedural noncompliance with Section 455.225, Florida Statutes, and the subsequent decision of the Board of Medicine to find probable cause and to have the Department of Professional Regulation proceed against Dr. Brown for care rendered the patients J.C., D.R., and T.E. The action to recover attorney's fees and costs not to exceed $15,000 was filed on April 27, 1993. The petition for attorney's fees and costs of April 27, 1993, was amended on July 15, 1993. Dr. Brown retained the law firm of Stowell, Anton and Kraemer to represent him in the aforementioned cases pertaining to the administrative prosecutions. His present attorney, Julie Gallagher, was principal counsel in those cases. No issue has been taken with the notion that $165.00 is a reasonable hourly rate for her services in defending Dr. Brown in the administrative prosecutions. Dr. Brown has paid all fees and costs charged by his lawyer in preparation for and participating in the proceedings related to the administrative prosecutions. To challenge the alleged procedural infirmities associated with the right to investigate, notice to the accused, opportunity for the accused to respond to the accusations and deliberations by the Probable Cause Panel contemplated by Section 455.225, Florida Statutes, it was not necessary for Dr. Brown to fully develop his defense on the merits of the accusations pertaining to patients J.C., D.R., and T.E. Dr. Brown's counsel in the exhibit associated with claims for attorney's fees and costs has highlighted the exhibit through color-codes in an attempt to assist the hearing officer in understanding the meaning of that exhibit. This color-code system attempts to identify those instances in which Dr. Brown claims that the work done on his behalf is associated only with patients with J.C., D.R. and T.E. and other occasions where a percentage is set forth in relation to work done in the entire DPR Case No. 91-06883/DOAH Case No. 92-1076, to include K.J. and in the other cases referenced before. The code is described in the August 16, 1993 cover letter from counsel for Dr. Brown. No attempt is made through the coding system to differentiate between those actions taken in moving to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patients J.C., D.R. and T.E. from other activities related to defending the accusations about those patients on the merits. The right to recover, if at all, is limited to those attorney's fees and costs associated with the motion to dismiss counts pertaining to the patients J.C., D.R., and T.E., together with the attorney's fees and costs associated with the present case. No other efforts by Dr. Brown's attorneys may be the proper subject for recovery. Not only was it not necessary to know information concerning the merits of the administrative complaint pertaining to patients J.C., D.R., and T.E. to pursue the motion to dismiss on procedural grounds, the decision that was made did not resolve the merits set forth in the administrative complaints directed to Dr. Brown's treatment of J.C., D.R., and T.E. The possibility exists that Dr. Brown could be called upon to defend against similar accusations to those set forth in the DPR Case No. 91-06883/DOAH Case No. 92-1076 at which time he could prepare himself to defend the merits and if successful that would be the appropriate moment to seek attorney's fees and costs for that aspect of the case. The arrangement by stipulation between the parties in the prior prosecution to delay consideration of the motion to dismiss until the place at which prosecution of the cases involving J.C., D.R., and T.E. were being examined on their merits was not appropriate. Consequently, Dr. Brown may not assert that he was required to prepare his motion to dismiss on procedural grounds simultaneously with his defense on the merits of the administrative complaint directed to the patients J.C., D.R., and T.E. Within this context, taking into account a lack of opposition to the $165.00 hourly rate charged by Dr. Brown's counsel, the following amounts are found to be associated with the pursuit of the motion to dismiss those counts related to patients J.C., D.R., and T.E. and claims under Section 57.111, Florida Statutes, to recover attorney's fees and costs: 3/11/92-$165.00; 3/14/92-$165.00; 3/16/92-$125.00; 3/31/92-$100.00; 4/2/92-$247.50; 4/6/92- $62.50; 4/6/92-$198.00; 4/10/92-$50.00; 4/16/92-$10.00; 4/17/92-$50.00; related to the motion to dismiss and 4/27/93-$165.00; 5/3/93-$33.00; 5/12/93-$15.00; 5/17/93-$82.50; 6/14/93-$165.00; related to the prosecution of the petition for attorney's fees and costs. No proof was offered concerning any special circumstances that point to any injustice in awarding attorney's fees and costs in the amount identified.
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause, alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact Following a July 28, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about September 3, 2003, the matter was referred to the Division of Administrative Hearings. It appearing on the face of the referral package that Respondent did not regularly employ 15 persons and that therefore Respondent did not qualify as an "employer" under Chapter 760, Florida Statutes, a September 12, 2003, Order was entered scheduling a telephonic hearing for October 1, 2003, and permitting the filing of any documents in support of the parties' respective positions. Respondent's "Submission of Materials in Support of Dismissal of Petition and Supporting Memorandum of Law" was served by United States Mail on September 25, 2003. It contained a prayer for dismissal. Pursuant to Rule 28-106.204, Florida Administrative Code, Petitioner was entitled to respond in writing by October 6, 2003. Petitioner did not respond. Respondent's "Supplemental Motion to Dismiss for Lack of Jurisdiction" was served upon Petitioner by hand-delivery, by United States Mail, and by "e-mail" on September 26, 2003. Per Rule, Petitioner was entitled to file a written response by October 8, 2003. Petitioner did not respond. A Corrected Order entered September 26, 2003, permitted the parties until October 7, 2003, to submit any documents tending to support or refute jurisdiction by the Division of Administrative Hearings over this cause. This Order also rescheduled the telephonic hearing for October 9, 2003. Petitioner filed nothing in response to either the September 12, 2003, Order or the September 26, 2003, Corrected Order. At the October 9, 2003, telephonic conference call, Respondent appeared through counsel. The opening of hearing was delayed five minutes, but Petitioner did not appear. Thereafter, oral argument upon all Motions proceeded without Petitioner. Petitioner still had not called in to the meet-me telephone number after 15 minutes, and the telephonic hearing was concluded. In an abundance of caution, an Order to Show Cause was entered on October 10, 2003, giving Petitioner 10 days in which to show cause, in writing, filed with the Division, why this cause should not be dismissed for lack of jurisdiction. Petitioner has filed nothing. Therefore, Respondent's documentation, including but not limited to: Respondent's accountants’ affidavits and its payroll journals, unemployment tax returns, and a payroll schedule, may be presumed true and accurate. All the documentation supports a finding that Respondent never employed more than 14 people for any one week in the year 2001 and employed 15 or more employees for only one week (December 21-28, 2002) in the year 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing this cause for lack of jurisdiction. DONE AND ENTERED this 30th day of October, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 30th day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Truman Jeffery Mayfield 902 Phillips Street Jacksonville, Florida 32207 Robert G. Riegel, Jr., Esquire Ryan R. Fuller, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203
The Issue Whether Respondent abused its discretion in withdrawing its certification of eligibility which had authorized Petitioner, a physician who was educated and trained in Nicaragua, to enroll in a course at the University of Miami that is necessary for his licensure to practice medicine in the State of Florida.
Findings Of Fact On October 19, 1989, Petitioner submitted to the Board of Medicine an application for licensure as a physician in the State of Florida. This application sought licensure by examination pursuant to Section 458.311(10), Florida Statutes. Petitioner is a physician who received his education and training in Nicaragua and who had practiced medicine in Nicaragua for approximately twenty years before moving to Florida. At no time pertinent to these proceedings was Petitioner licensed to practice medicine in the State of Florida. Petitioner's application sought the Board of Medicine's certification that Petitioner was eligible to enroll in a physician training course offered by the University of Miami. Petitioner needed to successfully complete this course as part of the licensure by examination process. Petitioner enrolled in this class after his eligibility was certified by the Board of Medicine on February 19, 1990. In April of 1990, a joint investigation of the L.A. Surgical Medical Center in Miami, Florida, (L.A. Center) was undertaken by the Florida Department of Law Enforcement and the Florida Department of Professional Regulation (DPR). While those agencies had reason to believe that an unlicensed physician was operating out of that facility, Petitioner was not initially a target of the investigation. Petitioner was, at the times pertinent hereto, the administrator of the L.A. Center. At the times pertinent to this proceeding Ramon Prieto was an undercover investigator employed by DPR. On April 25, 1990, Mr. Prieto presented himself to the L.A. Center complaining of severe back pains and asked to see a doctor. There was no licensed physician on the premises of the L.A. Center even though Mr. Prieto presented himself at approximately 1:00 p.m., which is during the L.A. Center's normal business hours. Mr. Prieto was seated in the waiting area where he waited for approximately twenty minutes. Petitioner came into the area in which Mr. Prieto had been waiting, told Mr. Prieto to come with him, and escorted Mr. Prieto into a doctor's office. In connection with Mr. Prieto's visit on April 25, 1990, Petitioner performed a medical examination, made a medical diagnosis, prescribed and dispensed medication, ordered x-rays, and created medical records. Petitioner also prescribed and provided medication for Mr. Prieto's wife based on Mr. Prieto's description of her symptoms even though Petitioner had not examined her or talked to her. Mr. Prieto requested that Petitioner give to him medication for himself and for his wife. While Mr. Prieto pretended to be in considerable pain, the evidence does not establish that his condition was treated by Petitioner as an emergency. On April 26, 1990, Mr. Prieto returned to the L.A. Center where he was again prescribed medication by Petitioner. Mr. Prieto was billed for Petitioner's services and for the medication that Petitioner gave to Mr. Prieto for himself and for his wife. On April 26, 1990, after Mr. Prieto's return visit, Petitioner was arrested by agents of the Florida Department of Law Enforcement. An information was filed against Petitioner charging him with two counts of practicing medicine without a license, which are third degree felony charges. On August 16, 1990, the Board of Medicine withdrew its certification of Petitioner's eligibility to continue the course at the University of Miami. Thereafter Petitioner filed his request for a formal administrative hearing. On September 24, 1990, the Board of Medicine entered an order which stayed its Order entered August 16, 1990, pending the resolution of this administrative proceeding. On September 10, 1990, in the Circuit Court for Dade County, Florida, Petitioner entered a plea of nolo contendere to the criminal charges that had been filed against him. The plea was accepted, adjudication of guilt was withheld, and Petitioner was sentenced to two days of time served. There was no evidence that Petitioner had engaged in the practice of medicine in the State of Florida without a license before or after April 25-26, 1990. The Board of Medicine had received no complaints regarding Petitioner other than those related to the events of April 25-26, 1990. Petitioner knew that his conduct with Mr. Prieto was wrong and that it constituted the unlicensed practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the Board of Medicine's withdrawal of its certification of Jose M. Bermudez's eligibility to take the subject University of Miami course. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of March, 1991. CLAUDE B. ARRINGTON 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 25th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-5894 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 2 - 6 are rejected as being the recitation of testimony that is either subordinate to the findings made or unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact in paragraphs 1 - 10 are adopted in material part by the Recommended Order. COPIES FURNISHED: Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1603 Tallahassee, Florida 32399-1050 Stephen H. Rosen, Esquire 2600 Douglas Road, Penthouse #2 Coral Gables, Florida 33134 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated a rule of the Board of Medicine or the Department by advertising in a deceptive or misleading manner, thereby violating a provision of Chapter 458, Florida Statutes, which makes a licensee subject to disciplinary action if found guilty of violating a rule of the Board or Department.
Findings Of Fact Respondent has been licensed as a physician by the Florida Board of Medicine since 1976 and holds license number ME0026906. He has completed a residency program in his speciality of orthopedics but has not been Board certified in this speciality by a member board of the American Board of Medical Specialists. Respondent identifies himself as a diplomate of the Academy of Neurological and Orthopedic Surgeons on letterhead on correspondence mailed from his office. He has been so designated by this Academy since 1980. Respondent also identified himself as a diplomate of the Academy of Neurological and Orthopedic Surgeons on various correspondence disseminated to Associated Insurance Brokers Claims Management in regard to patient E.S. Although Respondent contends that he did not intend his identification on his letterhead as a diplomate to be advertising, he did acknowledge that such designation enhances his stature as an orthopedic surgeon. Many insurance carriers approve for payment higher patient charges assessed by various specialists. Respondent testified that in order to be designated as a diplomate of the American Academy of Neurological and Orthopedic Surgeons he had to pass a rigorous examination; however, no evidence was submitted from which a comparison could be made between this designation and a similar designation from a Board approved by the American Board of Medical Specialists (ABMS). The American Academy of Neurological and Orthopedic Surgeons is not now and never has been a member of the American Board of Medical Specialties. Nor has it ever pertitioned the Florida Board of Medicine for recognition as a speciality board. The American Federation of Medical Accreditation, which recognizes the American Academy of Neurological and Orthopedic Surgeons, has never been a member board of the American Board of Medical Specialists; nor has the Federation ever petitioned the Florida Board of Medicine for approval as a recognizing agency for medical specialties.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered finding Edward Neil Feldman guilty of violation of Sections 458.331(1)(d) and (x), Florida Statutes; and that he be given an official reprimand and fined $2,000.00. DONE AND RECOMMENDED this 20th day of December, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 Hearing this 20th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3804 Proposed findings submitted by Petitioner are accepted. Proposed findings submitted by Respondent are accepted except as noted below: Accepted as testimony of Dr. Feldman. However, no evidence was submitted comparing this test to the test given by a speciality board approved by the ABMS. Second sentence rejected. By stating he is a diplomate, Respondent implies certain recognition. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected. See Hearing Officer #5 and #6. See Hearing Officer #5 and #6. Rejected as irrelevant. 15. Respondent's attempt to equate the notice on letterhead that Respondent was a diplomate to an entry in a curriculum vitae (c.v.) is misplaced. A c.v. is similar to a professional life history and is totally inapt for advertising. The same cannot be said when the achievement is placed on a letterhead. 18. Rejected. COPIES FURNISHED: Britt Thomas, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Thomas Saieva, Esquire SAIEVA & WALSH, P.A. 800 West DeLeon Street Tampa, Florida 33606-2722 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
