The Issue This is a license discipline case in which the Petitioner, by means of a three count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of alleged violations of subsections (2), (14), and of Section 475.624, Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Beverly J. Merchant is currently a Florida state certified general appraiser, having been issued license number 000141 in accordance with Chapter 475, Part II, Florida Statutes. The last license issued to Respondent was as a state certified general appraiser with a home address of 548 San Esteban Avenue, Coral Gables, Florida 33146. On January 14, 1994, Graimark/MIG Joint Venture and/or Crown Revenue, Inc., ordered Respondent to perform an appraisal of Sunrise Gardens, an adult congregate living facility (ACLF), in Miami, Florida. On March 31, 1994, the Respondent completed the appraisal of the property. The Respondent's appraisal report made several references to zoning "variances." The use of the term "variances" was reasonable under the circumstances of the subject appraisal. The Respondent's appraisal report stated that the highest and best use of the property was not as an adult congregate living facility (ACLF), but as some other institutional use. Under the circumstances of the subject appraisal, the Respondent provided adequate support to indicate that under the applicable zoning provisions "another institutional use" was probably permissible by variance. The Respondent's appraisal report included a cost approach that utilized a cost factor for "convalescent hospital space," even though the highest and best use was a use other than an ACLF. The use of that cost factor was reasonable under the circumstances of the subject appraisal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 5th day of September, 1996.
The Issue The issue for determination is whether Respondent was substantially justified, within the meaning of Section 57.111, Florida Statutes (2002), in initiating disciplinary proceedings against Petitioner, a licensed dentist, in Division of Administrative Hearings (DOAH) Case Number 01-3509PL (the underlying case). (All statutory references are to Florida Statutes (2002) unless otherwise stated.)
Findings Of Fact 1. Petitioner is a licensed dentist in the State of Florida pursuant to license number DN9676. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Chapter 456, and Chapter 466. 2. Several facts are not disputed by the parties. Petitioner filed this proceeding pursuant to Section 57.111. Respondent initiated the underlying case. Respondent is not a nominal party. Petitioner is a "prevailing small business party." The attorney's fees sought by Petitioner are reasonable in an amount up to $15,000.00. The statutory cap of $15,000.00 applies in this case. 3. At the Probable Cause meeting of June 12, 2001, the members of the Probable Cause Panel had probable cause to believe that Petitioner violated applicable law by failing to refer his patient to a specialist for lingual nerve damage suffered by the patient when Petitioner extracted the patient's wisdom teeth. At the Probable Cause meeting, the Panel received the entire investigative file, including all medical records, a statement and expert opinion submitted on the behalf of Petitioner by his attorney, and the expert opinion of Nidal Elias, D.D.S. M.S., submitted by Respondent. 4. Dr. Elias reviewed the medical records and rendered an expert opinion that the medical records submitted by Petitioner did not contain an indication that Petitioner referred his patient to a specialist. The medical records failed to reveal that the Petitioner referred the patient to a specialist. 5S. The medical records did not contain an express notation that Petitioner referred the patient to a specialist and did not contain a referral form. The Probable Cause Panel correctly determined probable cause existed for initiating disciplinary action against Petitioner. 6. The Administrative Complaint filed in the underlying case alleged that Petitioner failed to refer his patient to a specialist. However, counsel for Respondent attempted to prove that Petitioner failed to refer his patient in a timely manner. The ALJ excluded any evidence of the untimely nature of a referral to a specialist because the Administrative Complaint did not allege that Petitioner failed to refer his patient ina timely manner. The ALJ found the evidence to be less than clear and convincing that Petitioner failed to refer his patient to a specialist.
Conclusions For Petitioner: William M. Powell, Esquire Powell & Steinberg, P.A. 3515 Del Prado Boulevard Waterside Plaza, Suite 101 Cape Coral, Florida 33904 For Respondent: Trisha D. Bowles, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue The issue in this case is whether Petitioner's application for licensure as real estate sales associate should be granted.
Findings Of Fact On February 28, 2011, Mr. Poppell filed with the Commission an application for licensure as a real estate sales associate. In his application, Mr. Poppell stated that he was pleading not guilty to current charges of "trafficking, possession and receiving stolen property." By letter dated April 7, 2011, Mr. Poppell sent to the Commission the Alabama Uniform Incident/Offense Report relating to his arrest in Tuscaloosa, Alabama, on September 12, 2010, for trafficking in illegal drugs and unlawful possession of a controlled substance. At the time of his arrest, Mr. Poppell was a student at the University of Alabama. The criminal case against Mr. Poppell is currently pending, and Mr. Poppell does not anticipate that it will be resolved until 2012. Mr. Poppell, who is 22 years old, posted bail of $175,000. He currently lives in Florida and owns a pizza and sub restaurant with his mother in Niceville, Florida. On July 14, 2011, the Commission filed a Notice of Intent to Deny Mr. Poppell's application. The Commission's denial was based on Mr. Poppell's criminal history as revealed in his application and the unpersuasive testimony or evidence presented by Mr. Poppell as an explanation or mitigating factors. The Commission cited the following statutory basis for denying Mr. Poppell's application: Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. * * * F. Found guilty of a course of conduct or practices which show applicant is so incompetent, negligent, or dishonest that money, property and rights of others may not safely be entrusted to applicant. 475.25(1)(o), 475.181 F.S. * * * M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. Additionally, the Commission cited section 455.213(3), Florida Statutes (2011),1/ as an additional ground for denial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Mr. Poppell's application. DONE AND ENTERED this 1st day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2011.
Findings Of Fact The Respondent, Fahmy M. Rizk, M.D., is a licensed physician in the State of Florida, having been issued license number ME0028230. The Respondent is engaged in the practice of medicine at 117 San Carlos Boulevard, Ft. Myers Beach, Florida 33931. A formal hearing was held on August 22, 1978, before a hearing officer of the Division of Administrative Hearings, which resulted in a Recommended Order to the Board of Medical Examiners. The Recommended Order, with findings of fact and conclusions of law, was adopted as the Final Order of the Board of Medical Examiners on October 27, 1978, resulting in the suspension of Respondent's license for two (2) years. Respondent petitioned for reinstatement and modification of the suspension by Petition For Reinstatement And Modification Of Suspension heard on October 25, 1980, in Tampa, Florida. The petition resulted in a Final Order of the Board of Medical Examiners, entered on November 19, 1980, accepting a proposed Stipulation executed by the Respondent, Fahmy M. Rizk, M.D., on November 1, 1980. In the Stipulation, Respondent agreed, among other things: I shall be placed on a probationary status throughout the remainder of my practice of medicine in the State of Florida. During this period of probation, I shall be subject to the following terms and conditions: * * * (c) I shall examine or treat female patients only with the constant attendance of a licensed physician or nurse. Under the Final Order of the Board of Medical Examiners dated November 19, 1980, pursuant to the Stipulation executed by the Respondent on November 1, 1980, Respondent was reinstated to practice medicine in the State of Florida, based upon the requirements in the Stipulation. On June 6, 1981, the Board of Medical Examiners heard Respondent's request to practice medicine outside of a structured medical environment, and the request was denied June 26, 1981. On December 6, 1981, Respondent again requested of the Board of Medical Examiners a modification of his probation terms and conditions to once more practice outside of a structured medical environment, and the request was denied by Order dated January 14, 1982. On June 6, 1982, Respondent petitioned the Board of Medical Examiners for termination of his probation status, and the request was denied by Final Order of the Board of Medical Examiners on June 15, 1982. Again, on December 3, 1983, Respondent petitioned the Board of Medical Examiners to terminate his probation, and the request was denied by Order of the Board of Medical Examiners on January 13, 1984. However, Respondent's orders of probation were modified to relieve Respondent of the requirement that he make semiannual appearances before the Board and to reduce his monitoring physician's reporting from monthly to quarterly. In the year ending approximately February 2, 1986, Respondent examined or treated female patients without the attendance of either a licensed physician or a nurse, licensed or unlicensed. Respondent knew that he was required to have either a licensed physician or nurse in attendance when he examined or treated female patients. Between January and June, 1983, Respondent hired a nurse who was not licensed in Florida for $3.50 an hour to be in attendance when he examined or treated female patients. He misrepresented to Petitioner's investigator that the nurse was licensed in Florida and that she worked for Respondent through 1985. In April, 1985, Respondent also attempted to avoid the conditions of his probation by attempting to persuade Petitioner's investigator that the conditions of his probation had been modified to permit him to examine and treat female patients as long as another female was present although no such modification had been made. Much of the incriminating evidence Petitioner presented consisted of statements Respondent made to Petitioner's investigator. These statements were made voluntarily after the investigator informed Respondent that he was not obligated to speak to the investigator.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medical Examiners enter a final order holding Respondent, Fahmy M. Rizk, M.D., guilty of violating Section 458.331(1)(h) and (x), Florida Statutes (1985), and suspending his license until payment of a $1000 fine, payable in not more than 90 days. DONE AND ORDERED this 6th day of April, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3572 These rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. 9.-24. Subordinate to facts found. 25.-27. Accepted and incorporated. 28.-66. Subordinate to facts found. (It should be noted that "Dr. Murphy," as indicated in the transcript and referred to in proposed finding 29, should be Dr. Mufdi, according to the Hearing Officer's notes.) Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5.-6. Accepted but subordinate to facts found and unnecessary. Last sentence rejected as erroneous conclusion of law; rest accepted and subordinate to facts found. Accepted but subordinate to facts found and unnecessary. 9.-13. Accepted but subordinate to facts found. Rejected that the advice was "in spite of the official policy and procedures" because proof was that the advice was in accordance with the official policy and procedures. Rejected as contrary to the greater weight of the evidence to the extent it implies she was Respondent's only nurse. The evidence was Respondent told Potter that Cordias was part-time and worked when Muskatello was off. Also subordinate as a recitation of testimony. 16.-17. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (Other matters were discussed, too.) Also subordinate. Last sentence rejected, as contrary to the greater weight of the evidence, that those were the only matters discussed; rest rejected in part as erroneous conclusions of law as to the existence of a "fifth amendment privilege" and "right to an attorney" and in part as contrary to the finding that Potter did advise Respondent of his right to remain silent but otherwise accepted and subordinate to facts found. If "medical office" means "examination room," accepted but subordinate and unnecessary. First sentence accepted but subordinate to facts found; as to the second sentence, Potter's testimony was that in October, 1985, Respondent said Muskatello had not worked for him in the last four months; third sentence rejected as contrary to the finding that Respondent told Potter that Muskatello worked for Respondent through 1985 (although the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and readily understandable manner); last sentence subordinate to facts found. Subordinate in part to facts found and in part to facts contrary to facts found. Again, the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and easily understandable manner. It is equally clear that the facts found could have been proved more easily by evidence in addition to Respondent's admissions. But, as found, the evidence as a whole was sufficient to prove both that Mrs. Rizk was not a nurse, licensed or unlicensed, and that Respondent did examine or treat female patients in the year ending approximately February 2, 1986, without a licensed physician or nurse, licensed or unlicensed, being in attendance. Rejected as contrary to facts found. COPIES FURNISHED: David D. Bryant, Esquire 1107 D. Jackson Street Suite 104 Tampa, Florida 33602 Salvatore A. Carpino, Esquire FREEMAN & LOPEZ, P.A. 4600 West Cypress Avenue Suite 410 Tampa, Florida 33607 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Danny Michael Shipp is a black male who was employed at the Jacksonville, Florida, aluminum can plant of Respondent Kaiser Aluminum and Chemical Corporation. This period of employment was from October 29, 1978 until November 19, 1978. Mr. Shipp was hired as an equipment tender. In that position his duties included loading pallets, maintaining six paint spray guns and generally checking on equipment to ensure that is was functioning properly in the assembly of aluminum cans. His job required no special skills or qualifications. At the tame Mr. Shipp was hired, Kaiser was adding 70 to 80 people to its working force because it was starting up a new production shift. There were approximately 500 applicants and around 300 people were interviewed by plant management. A background check was made by Pinkerton's of Florida, Inc. on the newly-hired personnel including Mr. Shipp and another employee K.M. 1/. Of the 70 to 80 people hired, only K.M., who is white, and Mr. Shipp were reported to have a criminal record. Mr. Shipp's Pinkerton's report indicated: 7-2-77 Case number 77-2789 Possession of Contra. Substance (more than 5 grams) WHASJ Guilty 19 Month Probation. Released on $751.00 Bond. 3-26-70 Case number 701455 Assault and battery, case discharged 4-7-70 Case number 70 1454 Malicious Mischief, sugar in gas tank of Gail Shipp. K.M.'s report stated: 4-30-76 Case number 21013 possession Narcotics implements Nol. Press. Possession controlled substance Marijuana, over 5 gr. $250.00 Fine 7-31-78 Case number 3105 Sale of controlled substance, 80 days Duval County jail, 1 year Probation. There were other charges which were later shown as misdemeanor's. (sic.) On the job application form filled in by Mr. Shipp, Kaiser asked if he had been convicted of a felony within the last seven years. Mr. Shipp answered by checking a box "no." After several weeks of employment, Mr. Shipp on November 19, 1978, was invited to a conference with Mr. Rice, the Kaiser administrative manager; the plant manager; and the plant superintendent. This was still during his thirty- day probation period when he could be fired without cause and without the right to grieve a discharge. He was told by Mr. Rice that he was being terminated due to the Pinkerton's report. When Mr. Shipp asked for a specific reason for his discharge, Mr. Rice responded: (From Hearing Transcript p. 142) "He said, Well what are you talking about specifically?' And I said, 'Well, based on the evidence, the background check, that we no longer want to keep you as an employee. He said, 'Well, what specifically are you talking about?' And I said, 'Well,' I said, 'You currently are on probation?' He said, 'Yes, sir.' And I said, 'Well, let's just let it go at that, and I'm not going to talk about it anymore.' And that's basically what we did. And then Mr. Carlson walked back to the lockerroom with Mr. Shipp and we all walked out to the front, shook hands, and that was it. On October 21, 1977, Mr. Shipp was placed on probation, adjudication withheld for the felony possession of more than 5 grams of marijuana. His probation successfully expired on April 21, 1979, subsequent to his discharge at Kaiser. On his application with Kaiser, gave "layoff" as the reason for leaving a former employer, Jacksonville Shipyard. In fact, as was brought out during his cross examination, he was terminated there due to being absent from work. Kaiser's primary reason for discharging Mr. Shipp was because of his arrest record. At the time of his termination, Mr. Rice believed after consulting with Kaiser counsel, that Mr. Shipp had not been convicted of any felonies. He further believed that for the purpose of terminating an employee, K. M.'s report was the equivalent of Mr. Shipp's. K.M. who was also in his probationary period as an equipment tender was dismissed by Kaiser because of his arrest record. Kaiser has and had no custom, policy (written or otherwise) or practice of terminating an employee for his arrest record, conviction or criminal probation status. The decision to fire Mr. Shipp and K. M. was made spontaneously by Mr. Rice, Mr. Gene Miller, the plant manager, and Mr. Curtis Thompson, who collectively are the top management at the Jacksonville plant. There is no proof that anyone has ever been fired either before or after the termination of Mr. Shipp and K.M. because of their arrest record, convictions or criminal probation status. After his discharge, Mr. Shipp spoke with his probation counselor, Mrs. Susan Karl, about his discharge. She wrote a letter to Mr. Kaiser on November 28, 1978, in which she explained Mr. Shipp's legal status and gave her opinion about his currently being a law-abiding citizen. She asked that Mr. Shipp be considered for reemployment. He was not rehired. A copy of the Notice of Failure of Conciliation in Mr. Shipp's case was sent to him on March 10, 1980. He filed his Petition for Relief with the Commission on April 8, 1980. For reasons not appearing in the record, a Second Notice of Failure of Conciliation was sent to Mr. Shipp on March 28, 1980. During his employment at Kaiser, Mr. Shipp received three weekly evaluations as a probationary employee. For the first week his evaluator rated him as "fair" and commented that he "overreacted and needs to study more for the test." During the second week he received a "good" with the note that he "Works good on line, picks up on job fast." Finally, on November 17, 1980, he was given a "good" rating with the comment that "Danny's performance has been consistently good overall (He was late once)." With respect to Mr. Shipp's complaint charging Kaiser with race discrimination the Commission by its Executive Director has made a determination of reasonable cause to believe that an unlawful employment practice occurred.
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 the petition for relief filed by Danny Michael Shipp and supported by the Commission. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On June 27, 1977, respondent was charged by Information with committing the felony of leaving the scene of an accident on February 24, 1977. The accident resulted in injuries to a seventy-nine (79) year old woman, Grace Heck, who died nine (9) days later as a consequence of those injuries. Respondent pled nolo contendere to that charge and, on November 15, 1977, Judge Thomas M Coker, Jr, entered an order withholding adjudication of guilt and placing respondent on probation for a period of three (3) years, with the specific condition, among nine others, that he pay restitution for the medical expenses of the accident victim. The term of probation was later modified to one year to conform to the law. On or about July 10, 1978, respondent's probation officer filed an Affidavit of Violation of Probation stating nine violations of the terms of respondent's probation. These violations included failure to submit required reports and pay costs for supervision, failure to make restitution for the accident victim's medical expenses, carrying a concealed firearm, operating a motor vehicle on two occasions while his license was suspended, careless driving, and failure to reduce the speed of his automobile resulting in the colliding with and subsequent death of a pedestrian, John Kelly Wilkens. Effective July 13, 1978, Judge Coker revoked respondent's probation imposed for the offense of leaving the scene of an accident and sentenced respondent to one year in the county jail. Pursuant to a motion for mitigation, Judge Coker on August 18, 1978, set aside the order of adjudication of guilt and the one year sentence, and ordered that respondent be placed on a new probation for a period of one year. The original terms of probation were imposed, along with the conditions that respondent not resume the practice of medicine until an examining board determined his fitness and that he submit to a psychiatric evaluation and treatment, if required. On or about July 14, 1978, another Information was filed against respondent for the third degree felony offense of carrying a concealed weapon. After a plea of nolo contendere, adjudication of guilt was withheld and respondent was placed on probation for a period of five years by Judge Coker on January 24, 1979. Independent evidence was adduced by the petitioner with respect to both the hit-and-run accident and the carrying a concealed firearm charge. A passenger in respondent's car on February 24, 1977, testified in her deposition that respondent was driving his car, ran a red light in Fort Lauderdale and collided with a turning car containing two elderly persons. Respondent immediately left the accident scene, drove to a closed service station and stayed there for a few minutes, then drove to a school parking lot and left the car there. The deponent and respondent then walked to respondent's home, picked up another car and drove to West Palm Beach where respondent played tennis. Two officers with the Fort Lauderdale Police Department testified that their investigation of the February 24, 1977, accident confirmed that respondent was the driver of the hit-and-run vehicle. The officer who arrested respondent for carrying a concealed weapon testified by way of deposition that in June of 1978, she found respondent in his car with a fully loaded and cocked automatic weapon on the floor and live ammunition matching the weapon in his pocket. Respondent has not reported to his probation officer since October of 1979. An Affidavit of Violation of Probation has been filed against the respondent and respondent is presently the subject of an arrest warrant. His present whereabouts are unknown to his probation officer and he is considered a fugitive from justice. At the request of Judge Coker, Dr. Arnold H. Eichert, a psychiatrist, examined respondent on September 11, 1979, It was Dr. Eichert's opinion that respondent suffered from paranoid schizophrenia, Dr. Eichert seriously doubted respondent's ability to practice medicine at that time. Inasmuch as respondent had violated his probation and failed to appear at this hearing, Dr. Eichert opined that such conduct and poor judgment was consistent with his earlier diagnosis that respondent would be unable to practice medicine with reasonable skill and safety to patients. Respondent was expelled from the Broward County Medical Association on July 7, 1977, for the reason that his medical practice was detrimental to the profession, his patients or the community. No appeal was taken from this action. On November 10, 1977, respondent's medical staff privileges at Plantation General Hospital were suspended for his lack of attendance at general staff and departmental meetings. On September 30, 1977, the State Committee on Peer Medical Utilization Review (PMUR), which analyses physician treatment of Medicare patients for Blue Shield, found that respondent was guilty of "maximal overutilization of office visits, injections and laboratory procedures." This finding was made after a review of the medical records of approximately forty-five (45) of respondent's patients during the 1974 year. The charts were reviewed by Blue Shield, the Florida Medical Foundation, Inc. and a county peer review committee. Statistically, a review of respondent's patient charts illustrated that respondent was far beyond the utilization screening parameters as compared to other physicians in the Broward County area engaged in general practice. Specifically, the norm for visit days per patient for physicians doing general practice in the area was five days. The respondent's records indicated eight visit days per patient, or sixty percent over the screening parameter. The average number of injections per patient was 2.44. Respondent's injections per patient amounted to 17.7, or 620.08 percent over the parameter. Respondent's laboratory procedures per patient per year were 6.24, while the screening parameter was 4.96, representing 25.81 percent overutilization. By way of deposition, Dr. Frank Hodnette, Chairman of the State Committee on PMUR, testified that such statistics denote that respondent was "way out of bounds as far as his utilization of the medicare benefits as related to . . . the area of office visits, injections and laboratory work." After reviewing respondent's patient's medical charts, the various reviewing committees further concluded that respondent's practice deviated from the standard of acceptable daily practice and was not consistent with what is considered as standard good care of medical practice. A member of the Broward County Medical Association's PMUR Committee that reviewed respondent's records testified at the hearing as an expert in family and general practice. Dr. Nancy La Fuente reviewed several medical charts and found no medical justification for certain injections, multiple injections of the same substance, and an overall gross abuse of injections, particularly of vitamins. Dr. La Fuente concluded that respondent's practice significantly deviated from the standard of acceptable and prevailing medical practice in his area of expertise in Broward County.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 458.1201(1)(c), (m), (n) and (p) and that respondent's license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 6th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A. 666 Lewis State Bank Building Tallahassee, Florida 32301 Alfred E. Johnson, Esquire 3443 Hancock Bridge Parkway North Ft. Myers, Florida 33903 Nancy Whittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mailed to Stephen M. Niesen, M. D. to the three addresses indicated below: 1940 South Ocean Drive Hemisphere's Apartments No. 8-P Hallandale, Florida 33309 % Probation Department Broward County Courthouse Fort Lauderdale, Florida 33301 Post Office Box 6372 Fort Lauderdale, Florida 33310
