07-003396PL Department Of Health, Board Of Medicine vs. James S. Pendergraft, Iv, M.D.
 Status: Closed
Recommended Order on Tuesday, June 8, 2010.


View Dockets  
Summary: Petitioner proved a standard of care violation in failing to order lab tests when starting & during admn of anabolic steroids, a medical records violation for failure to document results of lab tests & prescription outside the course of practice.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF HEALTH, BOARD OF )

14MEDICINE, )

16)

17Petitioner, )

19)

20vs. ) Case No. 07-3396PL

25)

26JAMES F. PENDERGRAFT, IV, M.D., )

32)

33Respondent. )

35________________________________)

36RECOMMENDED ORDER

38Robert E. Meale, Administrative Law Judge of the Division

47of Administrative Hearings, conducted the final hearing in

55Orlando, Florida, on January 11-13, 2010.

61APPEARANCES

62For Petitioner: Gregg S. Marr

67Assistant General Counsel

70Department of Health

734052 Bald Cypress Way, Bin C-65

79Tallahassee, Florida 32399-3265

82For Respondent: Kenneth J. Metzger

87Metzger & Associates, P.A.

911637 Metropolitan Boulevard, Suite C-2

96Tallahassee, Florida 32308

99Sharon B. Roberts

102Strawn & Monaghan, P.A.

10654 Northeast Fourth Avenue

110Delray Beach, Florida 33483

114STATEMENT OF THE ISSUES

118The issues are whether Respondent deviated from the

126applicable standard of care, failed to keep medical records

135justifying the course of treatment, improperly delegated

142professional responsibilities, or prescribed, dispensed or

148administered controlled substances other than in the course of

157his professional practice; and, if so, what penalty should be

167imposed.

168PRELIMINARY STATEMENT

170By Administrative Complaint dated September 2, 2005,

177Petitioner alleged that Respondent is a licensed Florida

185physician, holding license number 59702. The Administrative

192Complaint alleges that Respondent owned and operated the Orlando

201Women's Center, which employed M. W., who was also a patient of

213Respondent.

214The Administrative Complaint alleges that M. W., who was

223not a licensed health care provider, assisted in patient

232preparation, administered medications, cleaned equipment,

237ordered supplies, and remained overnight with patients to

245administer pain medications, such as Demerol, which is a

254controlled substance. The Administrative Complaint alleges that

261Respondent authorized M. W. to administer pain medications

269without his supervision. The Administrative Complaint alleges

276that, in 1997, M. W.'s duties expanded to ordering controlled

286substances for the Orlando Women's Center using Respondent's

294Drug Enforcement Agency registration certificate (DEA number).

301The Administrative Complaint alleges that, in November

3081998, M. W. informed Respondent that she wanted to become a

319wrestler and bodybuilder and asked that he prescribe anabolic

328steroids for these purposes. However, the Administrative

335Complaint alleges that there was no medical justification for

344prescribing anabolic steroids to M. W.

350The Administrative Complaint alleges that, in November

3571998, Respondent allowed M. W. to use his DEA number to order

369anabolic steroids--specifically, Winstrol, depo-testosterone,

373and Stanozolol--for her personal use. The Administrative

380Complaint alleges that Chapter 893, Florida Statutes, defines an

389anabolic steroid as a Schedule III controlled substance and is

399any drug or hormonal substance chemically or pharmacologically

407related to testosterone that promotes muscle growth.

414The Administrative Complaint alleges that Respondent failed

421to order laboratory studies, such as liver function tests, to

431monitor the effect of the steroids that he authorized for M. W.

443Futher, the Administrative Complaint alleges that Respondent

450failed to document his monitoring of the effects of the steroids

461in his medical records.

465The Administrative Complaint alleges that, in March 1999,

473M. W. was found unconscious on the floor of the Orlando Women's

485Center. She allegedly told Respondent that she had abused

494cocaine, a Schedule II controlled substance, and heroin, a

503Schedule I controlled substance. Respondent allegedly made no

511effort to treat M. W.'s drug addiction or to refer her to an

524addiction specialist.

526The Administrative Complaint alleges that, in April 1999,

534M. W. was again found unconscious on the floor of the Orlando

546Women's Center. On August 23, 1999, Respondent allegedly

554ordered a drug profile on M. W., which was positive for

565benzodiazepines, a group of psychotropic drugs with potent

573hypnotic and sedative action used predominantly as anti-anxiety

581and sleep-inducing drugs, and cocaine metabolites, a Class II

590controlled substance that is a drug of abuse when used for

601nonmedical purposes, but is used medically to numb mucous

610membranes.

611The Administrative Complaint alleges that, on September 22,

6191999, M. W. expired from acute pulmonary edema and respiratory

629compromise due to acute bronchitis with persistent airway

637obstruction. The medical examiner allegedly stated that her

645death was due to natural causes.

651These paragraphs of the Administrative Complaint are

658realleged in each of the four counts of the pleading.

668Count One of the Administrative Complaint alleges that

676Section 458.331(1)(t), Florida Statutes, authorizes discipline

682for failing to practice medicine with that level of skill, care,

693and treatment that is recognized by a reasonably prudent similar

703physician as being acceptable under similar conditions and

711circumstances (Standard of Care). Count One alleges that

719Respondent violated the Standard of Care by:

726a. Prescribing anabolic steroids for M. W.

733when there were no medical indications to

740justify giving these drugs.

744b. Failing to order laboratory tests for

751M. W. to monitor the effects of the

759prescribed anabolic steroids.

762c. Failing to treat M. W.'s known drug

770addiction or to refer her to an addiction

778specialist.

779d. Employing M. W. in a position that gave

788her full access to narcotics to maintain her

796drug addiction.

798e. Allowing M. W., an unlicensed

804practitioner, to administer narcotics to

809patients without supervision.

812f. Allowing M. W. to use Respondent's DEA

820number to order controlled substances.

825g. Maintaining inadequate medical records

830that would justify the course of treatment.

837Count Two alleges that Section 458.331(1)(m), Florida

844Statutes, authorizes discipline for failing to keep legible

852medical records justifying the course of treatment, including

860patient histories, examination results, test results, records of

868drugs prescribed, dispensed or administered, and reports of

876consultations or hospitalizations. Count Two alleges that

883Respondent committed a medical records violation by failing to

892justify the course of treatment when he did not adequately

902document the monitoring of the effects of the anabolic steroids.

912Count Three alleges that Section 458.331(1)(w), Florida

919Statutes, authorizes discipline for delegating professional

925responsibilities to a person the licensee knows or has reason to

936know is not qualified by training, experience, or licensure to

946perform them. Count Three alleges that Respondent violated this

955provision by: a) allowing M. W. to administer controlled drugs

965and narcotics to patients and b) allowing M. W., who had a known

978drug addiction, to use Respondent's DEA number to order

987controlled substances.

989Count Four alleges that Section 458.331(1)(q), Florida

996Statutes, authorizes discipline for prescribing, dispensing,

1002administering, mixing, or otherwise preparing a legend drug,

1010including any controlled substance, other than in the course of

1020the physician's practice. Count Four alleges that Respondent

1028violated this provision by prescribing or allowing to be

1037purchased, with his DEA number, anabolic steroids for M. W.

1047without a medical indication or justification.

1053By Motion to Amend Administrative Complaint filed

1060August 20, 2009, Petitioner requested leave to amend paragraph

10697, above, of Count One, which alleges medical records as a

1080Standard of Care violation, to add a reference to Florida

1090Administrative Code Rule 64B8-9.003. By Order entered

1097September 3, 2009, this request was granted.

1104Petitioner transmitted the file to the Division of

1112Administrative Hearings on July 23, 2007. The case was first

1122set for hearing on January 7-11, 2008. The hearing was

1132repeatedly continued, most often due to problems in obtaining

1141discovery from the Drug Enforcement Administration (DEA). 1 Prior

1150to the assignment of the case to the undersigned Administrative

1160Law Judge in late October 2009, the case had been assigned to

1172three Administrative Law Judges, two of whom had disqualified

1181themselves.

1182At the hearing, ruling on Respondent's Motion to Dismiss

1191filed December 30, 2009, the Administrative Law Judge struck

1200paragraph g, above, of Count One, based on Board of Dentistry v.

1212Barr , 954 So. 2d 668 (Fla. 1st DCA 2007), and limited paragraphs

1224d, e, and f, above, of Count One to alleged breaches of the

1237Standard of Care with respect to the practice of medicine as to

1249M. W., as a patient, based on the final order in DOAH Case No.

126308-4197PL (requirement of a DEA registration to prescribe

1271certain medications is not a standard-of-care requirement).

1278These matters are discussed in the conclusions of law.

1287Petitioner voluntarily dismissed paragraph b of Count Three at

1296the start of the hearing.

1301At the hearing, Petitioner called seven witnesses and

1309offered into evidence seven exhibits: Petitioner Exhibits 1-3,

13175, 9, and 11-12. Petitioner Exhibit 1 is limited to pages 4-6

1329and A and B. Petitioner Exhibit 9 is admitted for penalty, not

1341liability. Respondent called seven witnesses and offered into

1349evidence eight exhibits: Respondent Exhibits 1-4, 7, and 8.

1358Respondent Exhibit 7 is the following pages of Petitioner

1367Exhibit 1: 11-20 and 22-32. Respondent Exhibit 8 is Petitioner

1377Exhibits 7 and 8. All exhibits were admitted.

1385The parties received the Transcript prior to its filing

1394with the Division of Administrative Hearings. The parties filed

1403their Proposed Recommended Orders on March 22, 2010, and the

1413court reporter filed the transcript on March 31, 2010.

1422FINDINGS OF FACT

14251. Respondent is a licensed physician in Florida, holding

1434license number 59702. He has been licensed in Florida since

14441991. Respondent is Board-certified in obstetrics and

1451gynecology. His last certification was in November 2009.

14592. Respondent received his bachelor of science degree from

1468the University of North Carolina at Chapel Hill in 1978. He

1479received his doctor of medicine degree from Meharry Medical

1488College in Nashville in 1982. He performed a surgical

1497internship from 1982-83 with the Madigan Army Medical Center in

1507Tacoma, an obstetrics and gynecology residency from 1987-91 at

1516the Harbor Hospital Center in Baltimore, and a maternal fetal

1526medicine fellowship from 1991-93 at the University of South

1535Florida.

15363. During the residency, Respondent completed a six-week

1544rotation in the mental evaluation, diagnosis, and treatment of

1553transgendered patients. The training took place on the campus

1562of Johns Hopkins University, which was one of the first medical

1573schools to offer training in the diagnosis and treatment of

1583transgendered patients. During this rotation, Respondent

1589assumed responsibility for the care of about 30 patients, a

1599little over half transitioning from female to male.

16074. From 1991-93, Respondent performed obstetrics and

1614gynecology at several medical facilities in Florida, Maine, and

1623Missouri. From 1993-96, Respondent was the Chief of

1631Perinatology, Healthy Start Program, at the D.C. General

1639Hospital/Howard University in Washington.

16435. In 1996, Respondent started the Orlando Women's Center

1652(OWC) in Orlando, which he still owns and operates. He opened a

1664second women's clinic in Orlando the following year. Respondent

1673also participated in the starting of women's clinics in Ocala in

16841998, Fort Lauderdale in April 1999, and Tampa in October 1999.

16956. In October 1996, about six months after opening, OWC

1705hired M. W. as a medical assistant. She had nearly completed

1716the coursework to become a licensed practical nurse, but at no

1727time material to this case was she ever a licensed health care

1739provider. M. W. was employed by OWC until 1999.

17487. M. W. was a diligent employee. Her initial duties were

1759answering the telephone and working in the lab. However, her

1769enthusiasm, intelligence, dedication, and discretion earned

1775M. W. a promotion. In January 1997, Respondent promoted M. W.

1786to a trusted position in which she would care for patients

1797undergoing abortions during the second trimester of pregnancy.

18058. Working conditions required M. W. to be on-call nearly

1815all of the time, as certain patients demanded to be admitted

1826during nights or weekends to preserve confidentiality. The work

1835was stressful because some patients bore fetuses with

1843abnormalities, and protestors regularly demonstrated outside the

1850clinic. M. W.'s new duties allowed Respondent himself to

1859observe her work and determine that M. W. had the psychological

1870stability to perform her job well.

18769. M. W. demonstrated her trustworthiness by dealing with

1885patients' valuables, opening and closing the clinic, ordering

1893supplies and stocking five surgical rooms, and drawing

1901controlled substances for administration by Respondent. At the

1909end of 1997, Respondent promoted M. W. to ordering and stocking

1920the clinic's medical supplies, which include controlled

1927substances. For Schedule II drugs, which includes narcotics,

1935and Schedule III drugs, which includes steroids, M. W. had to

1946fill out a DEA Form 222, using Respondent's DEA number to place

1958the order.

196010. When OWC received Schedule III drugs, M. W. matched

1970the order with the shipment. She then recorded the information

1980in the OWC drug log. M. W. would place the drugs in a locked

1994cabinet, if they were not needed for immediate use in the

2005clinic.

200611. After nearly one year of ordering supplies, toward the

2016end of 1998, M. W. approached Respondent to discuss a personal

2027matter. At this point, the material disputes between the

2036parties emerge. Respondent testified that M. W. discussed with

2045him the possibility of undergoing transgender therapy, as well

2054as treatment for an injured shoulder. According to Petitioner,

2063M. W. discussed with Respondent the possibility of using

2072anabolic steroids to improve her bodybuilding and weightlifting.

2080The parties do not dispute that M. W. had participated in

2091bodybuilding and weightlifting for several years prior to her

2100employment with OWC. The Administrative Law Judge credits

2108Petitioner's version of the purpose of treatment.

211512. Respondent testified that M. W. told him that she had

2126thought about changing genders for several years. She did not

2136like or want her breasts. She did not like the shape of her

2149hips and thighs. She had decided that she did not want children

2161and did not want to undergo menstruation. Although M. W. may

2172have told Respondent that she did not like her body shape, she

2184did not tell him that she wanted to change into a man.

219613. As discussed below, M. W. is not available to confirm

2207or deny Respondent's version of events, and Respondent does not

2217have any medical records documenting his care and treatment of

2227M. W. Assigning a secondary reason for the treatment--healing a

2237long-injured shoulder--is an awkward fit with Respondent's

2244version of events, given the unlikelihood that someone

2252considering a decision as major as changing genders would bother

2262assigning a secondary reason for the decision. This secondary

2271reason for the treatment is a better fit with Petitioner's

2281version of events, although treatment of an injured shoulder

2290was, at most, a very minor factor in the steroid treatment

2301because the reconstructed medical records, discussed below,

2308mention strength and bodybuilding, not recovery from a shoulder

2317injury.

231814. The most important reason to credit Petitioner's

2326version of the purpose of the steroid treatment over

2335Respondent's version is that Petitioner's version conforms to

2343Respondent's initial description of the purpose of the

2351treatment. In other words, this is not a case of Respondent's

2362word against contrary inferences drawn by Petitioner; this is a

2372case of Respondent's later word against Respondent's earlier

2380word.

238115. The parties do not dispute that, after the initial

2391meeting to discuss the personal matter, Respondent agreed to

2400allow M. W. to order anabolic steroids using his DEA number and

2412at the discounted price charged to OWC. The drugs that

2422Respondent expressly allowed M. W. to order--and which he

2431prescribed for her--were Winstrol and, a short while later,

2440depo-testosterone. Respondent prescribed for M. W. Winstrol

2447orally at the rate of 2 mg per day, increasing to 10 mg per day

2462at the end of six weeks, and depo-testosterone by intramuscular

2472injection, which Respondent administered initially at the rate

2480of 50 mg every two weeks, increasing to 200 mg every two weeks.

249316. The parties do not contest that, in early summer 2009,

2504M. W. ordered through OWC sufficient Winstrol and Deca-Durabolin

2513for her weightlifting father and brother, with whom she lived,

2523to complete one six-week bodybuilding cycle each with these two

2533anabolic steroids. For her brother, the evidence establishes

2541that M. W. ordered through OWC additional Winstrol and

2550sufficient depo-testosterone for him to complete a second six-

2559week cycle. The evidence is undisputed that M. W. administered

2569the injections of Deca-Durabolin and depo-testosterone to her

2577brother, Deca-Durabolin to her father, and Deca-Durabolin to

2585herself. M. W. probably took additional Winstrol at home. The

2595evidence is also clear that, in addition to ordering the

2605Winstrol and depo-testosterone in quantities in excess of the

2614amount that she was authorized to order and Deca-Durabolin

2623without any authority whatsoever, M. W. also ordered--without

2631authorization--Xanax, an anti-anxiety drug, and Soma, a muscle

2639relaxant, possibly for her own use. Petitioner contends that

2648Respondent knew or reasonably should have known of these

2657unauthorized orders, but the evidence that Respondent knew is

2666nonexistent, and the evidence that he should have known is

2676insubstantial.

267717. There is little, if any, dispute that, unknown to

2687Respondent, M. W. was using cocaine and heroin--by her own

2697admission since early 1998. In late July 1999, Respondent was

2707informed that M. W. had passed out at work. When Respondent

2718spoke with her about this incident, M. W. admitted to the use of

2731cocaine and heroin, most recently a couple of weeks earlier.

2741Respondent immediately withdrew his authorization of M. W. to

2750order supplies and medications for OWC and immediately

2758discontinued further steroid treatment.

276218. Acting as M. W.'s employer, not physician, Respondent

2771ordered M. W. to submit to a drug screen for Demerol, which had

2784been missing from OWC, 2 Valium, and cocaine. Three weeks later,

2795he received the results, which were positive for cocaine. After

2805giving M. W. an opportunity to discontinue illegal drug use,

2815Respondent ordered M. W. to submit to another drug screen for

2826Demerol, Valium, fentanyl, cocaine, and heroin, and the report,

2835received in late August, was positive for cocaine and Valium.

284519. On September 22, 1999, M. W. was found dead in her

2857home by her father. The first law enforcement officers

2866responding to the 911 call reported that they had found a

2877lifeless male dressed in woman's panties; this mistaken

2885observation was based on M. W.'s muscularization and shadowy

2894presence of facial hair. A homicide detective conducting an

2903initial investigation found large quantities of syringes and

2911prescription drugs, mostly steroids, in M. W.'s bedroom. He

2920also found shipping labels and receipts with the names of OWC

2931and Respondent.

293320. The parties have stipulated that the death was

2942unrelated to steroid use. M. W.'s death was classified as a

2953natural death. She was 30 years old.

296021. In resolving the major factual dispute--i.e., the

2968purpose of the treatment--the Administrative Law Judge has

2976assigned considerable weight to Respondent's earlier responses

2983to law enforcement and regulatory inquiries. In these

2991responses, Respondent never mentioned transgender treatment or

2998gender identity disorder, but instead admitted that the

3006treatment was to enhance athletic performance and to facilitate

3015bodybuilding.

301622. In a written reconstruction of the medical records

3025done prior to the commencement of this case, Respondent stated

3035that he was "unable to locate [M. W.'s] chart so I will

3047reconstruct her chart from memory. Last time chart was seen was

3058June [19]99 which was given to [her]."

306523. The reconstructed chart shows three office visits:

3073November 7, 1998, March 20, 1999, and June 26, 1999. None of

3085the reconstructed notes mentions anything about lab work being

3094ordered, the results of any lab work, or anything about an

3105injured shoulder and whether it was healing.

311224. The entry for November 7 starts: "[Patient] request

3121being placed on testosterone for body building. States she

3130. . . is considering Pro-Wrestling." The notes indicate blood

3140pressure of 118 over 64, pulse of 72, and nothing remarkable

3151from a basic physical examination. The notes state: "Wants to

3161body build; requests steroids." The notes report that

3169Respondent prescribed Winstrol in 2 mg doses and explained the

3179side effects, and Respondent was going to allow M. W. to order

3191her steroid medication from the clinic's vendors. This entry

3200concludes with a note for a followup visit in three months.

321125. The entry for March 20, 1999, states that M. W. had no

3224complaints, reported getting stronger, and was happy with

"3232bench," meaning bench-pressing, a form of weightlifting. This

3240note states that M. W. denied experiencing any side-effects and

3250wanted to add a second steroid: "Request to add Depo-

3260Testosterone."

326126. The entry for June 26, 1999, notes that M. W. "feels

3273good about herself and her outlook on life is much improved" and

3285is "continuing to [increase] strength [with] weights." This

3293note contains findings of a physical exam, including blood

3302pressure of 124 over 78 and pulse of 72, and the note concludes

3315that M. W. was doing well and Respondent planned to continue the

3327same steroid regime.

333027. The other time that Respondent discussed the purpose

3339of the treatment was when he was interviewed by a law

3350enforcement officer on March 10, 2000, in the presence of

3360Respondent's attorney. Respondent did not say anything about

3368transgender treatment or gender identity disorder, and he was

3377evasive when asked if he were M. W.'s physician. When asked if

3389M. W. were ever a patient or just an employee, Respondent

3400responded by referring to the incident when she passed out at

3411work: "She now when you say she would ah the only time when she

3425and I were upstairs that day. . . . And when she had the

3439overdose." The law enforcement officer asked, "And that's like

3448in August [1999]?" Respondent replied, "Yeah. . . . The

3458question was and I and I still haven't been able to define that

3471because she asked me not to tell anybody about her problem with

3483her drug habits and this type of scenario. So the question is

3495whether or not she was a, whether or not honestly she was a

3508patient of mine at that particular point in time." 3

351828. Shortly after this exchange, the law enforcement

3526officer asked Respondent if the steroids that Respondent allowed

3535M. W. to order through the OWC were for competitive purposes,

3546such as weightlifting. Respondent replied, "we had a discussion

3555about her wanting to . . . make it so that her, that she could

3570work out harder because she was having some problems with her

3581shoulders and these type of things . . . .." 4

359229. These reconstructed records and statements to a law

3601enforcement officer were not casual statements uttered in an

3610informal setting. This was information that Respondent provided

3618to assist in the investigation of the circumstances surrounding

3627the death of this 30-year-old woman. Except for mention of a

3638shoulder injury in the last-cited statement--an effort by

3646Respondent to convert the treatment objective from pure

3654enhancement of athletic performance to a mix of enhancement of

3664athletic performance and therapy for some undiagnosed shoulder

3672injury--the information consistently implies that the treatment

3679objective was to improve M. W.'s efforts in bodybuilding and

3689weightlifting. And the mention of the shoulder injury suggests

3698only that its healing was subordinate to the weightlifting and

3708bodybuilding. The failure of the reconstructed records to

3716contain any diagnostic information or progress reports on the

3725injured shoulder precludes a finding that the treatment

3733objective was to heal a shoulder injury.

374030. Respondent testified about the importance of

3747confidentiality for his patients, especially M. W., as she was

3757undergoing "gender transformation." But patient confidentiality

3763is not an end in itself; it is a means to assuring that the

3777patient will trust the physician with all relevant information

3786necessary for diagnosis and treatment. Respondent implied that

3794the requirement of patient confidentiality somehow trumped the

3802duty not to affirmatively frustrate investigations into the

3810death of his employee and patient. This makes no sense.

3820Respondent's strained "explanation" for creating a misleading

3827set of medical records yields to the simpler explanation that

3837Respondent told the truth in these reconstructed records and in

3847the police interview: Respondent was treating M. W. with

3856steroids for bodybuilding and wrestling, not for gender

3864transformation and not for an injured shoulder.

387131. These findings are supported by the fact that the

3881first drug that Respondent prescribed M. W. was Winstrol. The

3891anabolic effect of a steroid promotes muscularization, and the

3900androgenic effect of a steroid promotes masculinization.

3907Because Winstrol produces more anabolic than androgenic effect,

3915it was long favored by females who wanted to produce muscle

3926mass, such as for bodybuilding, without masculinization.

3933Initiating treatment with Winstrol and following with depo-

3941testosterone is a conventional example of the cyclical use of

3951steroids for muscularization, not masculinization.

395632. One of Respondent's expert witnesses made an

3964interesting observation based on the misidentification of the

3972gender of the body of M. W. by the first responders. He

3984testified that, if Respondent had been ordering the anabolic

3993steroids for weightlifting and bodybuilding, M. W. must have

4002been seriously dissatisfied with the masculinization that she

4010had undergone. However, this observation overlooks the fact

4018that M. W., without Respondent's knowledge, had administered to

4027herself unknown quantities of the prescribed anabolic steroids

4035and Deca-Durabolin. Like Winstrol, Deca-Durabolin is more

4042anabolic, or muscle-making, than androgenic, or masculinizing--

4049which is consistent with M. W.'s intent to enhance her athletic

4060performance and bodybuilding, not change her gender. Although

4068the first responders observed some facial hair, in addition to

4078muscularization, nothing in the record suggests that M. W. could

4088take all of these anabolic steroids in unknown quantities

4097without experiencing some masculinization, or that she expected

4105no such masculinization side effects. Under these

4112circumstances, M. W. could not legitimately have confronted

4120Respondent over the incidental masculinization that she had

4128experienced, while self-administered steroids whose main effect

4135was muscularization, without running the risk that he would

4144detect her unauthorized ordering of steroids.

415033. As noted above, there are no available medical

4159records. Respondent testified that he gave M. W.'s medical

4168chart and drug log "VIP" treatment to preserve confidentiality:

4177Respondent allowed M. W. to keep her medical records and the

4188drug log pertaining to her medications. Each time M. W.

4198presented to Respondent, such as for an injection, she brought

4208with her these files, according to Respondent. Petitioner

4216contends that these records never existed, and, therefore,

4224Respondent failed to document that he monitored the effects of

4234the anabolic steroids that he ordered for M. W. The

4244Administrative Law Judge credits Petitioner's version of the

4252situation regarding medical records.

425634. At the hearing, Respondent characterized as a mere

"4265sampling" the medical records that he had initially called a

4275reconstruction. He implied that the reconstructed medical

4282records were illustrative of what the records originally

4290contained. This probably explains how he could reconstruct

4298blood pressure readings of 118 over 64 and 126 over 78 taken six

4311and nearly twelve months prior to the reconstruction of the

4321records. Likely, he recalled that the values were normal and

4331inserted these readings merely to illustrate his recollection.

433935. However, as noted above, these reconstructed records

4347are significant for their omission of any similar illustrative

4356reconstructions of an SBC for blood chemistry, SMAC 18 for

4366electrolytes and kidney and liver function, and lipids for

4375cholesterol and triglycerides. This lab work is essential, at

4384the start of a course of treatment with anabolic steroids and

4395periodically during treatment, to ensure the safety of any

4404patient, especially when orally ingested anabolics--here,

4410Winstrol--are administered, due to the possibility of liver

4418damage. Respondent testified at the hearing that the lab

4427results were normal, but, unlike his addition of illustrative,

4436normal values for blood pressure and pulse, Respondent never

4445added illustrative, normal values for this lab work. This is

4455because he never ordered such lab work.

446236. These lab tests are common in a variety of

4472circumstances, so they did not require the "VIP treatment" that

4482Respondent claimed was required for the transgender treatment

4490plan. However, Respondent never produced medical records or

4498even lab paperwork, such as test results or invoices,

4507documenting that these tests had been done. Also, if such

4517records had existed and Respondent had allowed M. W. to keep

4528them, one obvious place for them would have been in M. W.'s room

4541at her home, but Respondent never sent anyone there to look for

4553them after her death.

455737. As to the Standard of Care allegations, Petitioner has

4567thus proved first, that Respondent prescribed steroids for M. W.

4577both for muscle building (not to treat an injured muscle) and

4588for enhancement of athletic performance; and, second, that

4596Respondent did not order lab work to monitor the effects of the

4608steroids that he prescribed for M. W.

461538. The evidence fails to establish that Respondent ever

4624undertook the treatment of M. W.'s drug addiction (despite his

4634statement to the contrary, which has been discredited). The

4643evidence fails to establish the circumstances out of which a

4653duty to treat could have arisen, especially within the brief

4663time frame between Respondent's discovery of her drug problems

4672and her death.

467539. Any evidence relevant to the remaining allegations

4683within Count One involves the employer-employee relationship,

4690not the physician-patient relationship, between Respondent and

4697M. W.

469940. As to the medical records violation, Petitioner has

4708proved that Respondent's medical records failed to adequately

4716document the monitoring of the effects of anabolic steroids that

4726Respondent prescribed for M. W. The evidence establishes the

4735necessity of lab work, at the start and during steroid

4745treatment, to ensure the safety of the patient. Without this

4755lab work, documented in the medical records, the course of

4765steroid treatment is not justified.

477041. The evidence fails to establish that Respondent

4778delegated responsibilities to a person whom Respondent knew or

4787reasonably should have known was not qualified by training,

4796experience, or licensure to administered controlled substances

4803to patients. Drug addiction is not a deficit in training,

4813experience, or licensure. Even if drug addiction fell within

4822one of these statutory categories, the evidence fails to

4831establish any improprieties in M. W.'s administration of

4839controlled substances to patients, and, even if the evidence

4848proved such improprieties, the evidence fails to establish that

4857Respondent knew of M. W.'s drug addiction at a point to have

4869timely relieved her of her duties, or that Respondent reasonably

4879should have known of M. W.'s drug addiction in time to do

4891anything about it. To the contrary, Respondent's termination of

4900these responsibilities of M. W. appears to have been timely.

491042. Petitioner has proved that Respondent prescribed and

4918administered controlled substances--i.e., anabolic steroids--for

4923muscle building, not the treatment of an injured muscle, and for

4934enhanced athletic performance.

493743. Respondent has previously been disciplined. By Final

4945Order entered on December 18, 2007, in DOAH Case No. 06-4288PL,

4956the Board of Medicine imposed one year's suspension, a $10,000

4967fine, and three years' probation for failing to perform a third-

4978trimester abortion in a hospital and failing to obtain the

4988written certifications of two physicians of the necessity for

4997the procedure; committing an associated medical-records

5003violation; and committing a Standard of Care violation for

5012failing to perform a third-trimester abortion in a hospital.

5021Respondent's acts and omissions occurred in 2005. The Fifth

5030District Court of Appeal affirmed the Final Order in Pendergraft

5040v. Department of Health, Board of Medicine , 19 So. 3d 392 (Fla.

50525th DCA 2009).

505544. By Final Order entered on January 28, 2010, in DOAH

5066Case No. 08-4197PL, the Board of Medicine imposed two years'

5076suspension, a $20,000 fine, and three years' probation for

5086committing a Standard of Care violation for failing to a advise

5097subsequent treating physicians that he had removed a portion of

5107a patient's fetus and an associated medical-records violation.

5115Respondent's acts and omissions occurred in 2006.

512245. Although Respondent has been disciplined prior to this

5131recommended order, the acts and omissions in this case took

5141place several years prior to the acts and omissions in the two

5153cases described immediately above.

5157CONCLUSIONS OF LAW

516046. The Division of Administrative Hearings has

5167Fla. Stat. (2009).

517047. Petitioner must prove the material allegations by

5178clear and convincing evidence. Department of Banking and

5186Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

51981996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

520948. Section 458.331(1), Florida Statutes (1998), provides,

5216in relevant part:

5219(1) The following acts shall constitute

5225grounds for which the disciplinary actions

5231specified in subsection (2) may be taken:

5238* * *

5241(m) Failing to keep legible, as defined

5248by department rule in consultation with the

5255board, medical records that identify the

5261licensed physician or the physician extender

5267and supervising physician by name and

5273professional title who is or are responsible

5280for rendering, ordering, supervising, or

5285billing for each diagnostic or treatment

5291procedure and that justify the course of

5298treatment of the patient, including, but not

5305limited to, patient histories; examination

5310results; test results; records of drugs

5316prescribed, dispensed, or administered; and

5321reports of consultations and

5325hospitalizations.

5326* * *

5329(q) Prescribing, dispensing,

5332administering, mixing, or otherwise

5336preparing a legend drug, including any

5342controlled substance, other than in the

5348course of the physician's professional

5353practice. For the purposes of this

5359paragraph, it shall be legally presumed that

5366prescribing, dispensing, administering,

5369mixing, or otherwise preparing legend drugs,

5375including all controlled substances,

5379inappropriately or in excessive or

5384inappropriate quantities is not in the best

5391interest of the patient and is not in the

5400course of the physician's professional

5405practice, without regard to his or her

5412intent.

5413* * *

5416(t) Gross or repeated malpractice or the

5423failure to practice medicine with that level

5430of care, skill, and treatment which is

5437recognized by a reasonably prudent similar

5443physician as being acceptable under similar

5449conditions and circumstances. . . . As used

5457in this paragraph, "gross malpractice" or

"5463the failure to practice medicine with that

5470level of care, skill, and treatment which is

5478recognized by a reasonably prudent similar

5484physician as being acceptable under similar

5490conditions and circumstances," shall not be

5496construed so as to require more than one

5504instance, event, or act. Nothing in this

5511paragraph shall be construed to require that

5518a physician be incompetent to practice

5524medicine in order to be disciplined pursuant

5531to this paragraph.

5534* * *

5537(w) Delegating professional

5540responsibilities to a person when the

5546licensee delegating such responsibilities

5550knows or has reason to know that such person

5559is not qualified by training, experience, or

5566licensure to perform them.

5570* * *

5573(ee) Prescribing, ordering, dispensing,

5577administering, supplying, selling, or giving

5582growth hormones, testosterone or its

5587analogs, human chorionic gonadotropin (HCG),

5592or other hormones for the purpose of muscle

5600building or to enhance athletic performance.

5606For the purposes of this subsection, the

5613term "muscle building" does not include the

5620treatment of injured muscle. . . .

562749. As noted above, the Administrative Law Judge limited

5636the Standard of Care allegations in two respects. First, the

5646allegation in paragraph g of Count One attempts to recast a

5657medical records violation as a Standard of Care violation. This

5667interpretation of these two statutory subsections was rejected,

5675in the context of the practice of dentistry, in Barr

5685v. Department of Health, Board of Dentistry , 954 So. 2d 668

5696(Fla. 1st DCA 2007).

570050. Second, the Administrative Law Judge limited the scope

5709of proof that would be admissible to prove the allegations in

5720paragraphs d, e, and f of Count One because a Standard of Care

5733violation applies only to the practice of medicine and not to

5744other acts and omissions of the licensee. Section 458.305(3),

5753Florida Statutes (1998), provides: "'Practice of medicine'

5760means the diagnosis, treatment, operation, or prescription for

5768any human disease, pain, injury, deformity, or other physical or

5778mental condition." In this case, the evidence supporting these

5787three paragraphs of Count One pertained exclusively to

5795Respondent's employment or managerial practices involving M. W.

5803as an employee, not the practice of medicine with respect to

5814M. W. as a patient, so Petitioner has failed to prove the

5826Standard of Care violations alleged in these three paragraphs.

583551. As to paragraph a of Count One, Petitioner has proved

5846that Respondent prescribed anabolic steroids to M. W. without

5855medical indication. Section 458.331(1)(ee) prohibits the use of

5863anabolic steroids to build muscle, except to treat injured

5872muscle, or to enhance athletic performance. Any prescription of

5881anabolic steroids in violation of this statute thus cannot be

5891medically indicated. The exception applies to building muscle,

5899not athletic performance. To the extent that M. W. sought

5909anabolic steroids for weightlifting, which is athletic

5916performance, not muscle building, the injured-muscle exception

5923is unavailable to Respondent. However, as noted in the findings

5933of fact, Petitioner proved that Respondent did not prescribe

5942anabolic steroids to heal an injured muscle.

594952. The problem with paragraph a of Count One is that is

5961it mispleaded, under Barr . The prescription of anabolic

5970steroids under these circumstances violates Section

5976458.331(1)(ee), so it does not constitute a Standard of Care

5986violation under the reasoning of Barr .

599353. As to paragraph b of Count One, Petitioner has proved

6004that the failure to order lab work to monitor the effects of the

6017anabolic steroids is a Standard of Care violation. Respondent

6026testified that he ordered the lab work, and he was treating

6037M. W. for gender identity disorder. The Administrative Law

6046Judge is free to disbelieve unrebutted testimony of a physician.

6056Fox v. Department of Health , 994 So. 2d 416 (Fla. 1st DCA 2008)

6069(dictum). But see Reich v. Department of Health , 973 So. 2d

60801233 (Fla. 4th DCA 2008) (Administrative Law Judge's

6088discrediting of physician's testimony describing additional

6094medical records reversed due to lack of competent substantial

6103evidence). In this case, as noted above, Respondent himself

6112provided contrary evidence, prior to the commencement of this

6121case, that is consistent with Petitioner's version of events.

613054. The failure to order lab work is distinct from the

6141medical records violation discussed below because a practitioner

6149could order the lab work, but fail to document it. In this

6161case, though, where the physician fails to order and document

6171the lab work, there is considerable overlap between the

6180offenses, which must be considered when determining the

6188appropriate penalty.

619055. As to paragraph c of Count One, the evidence has

6201failed to prove that Respondent violated the Standard of Care by

6212failing to treat M. W.'s drug addiction for the reasons stated

6223above.

622456. As to Count Two, Petitioner has proved a medical

6234records violation because Respondent failed to document

6241adequately the effects of the anabolic steroids--specifically,

6248by failing to document the results of the lab work that must be

6261performed when administering anabolic steroids under these

6268circumstances. This is a failure to justify the course of the

6279steroid treatment that Respondent pursued with M. W.

628757. As to Count Three, the evidence fails to establish an

6298improper delegation of professional responsibilities to M. W.

6306for the reasons stated above.

631158. As to Count Four, Petitioner has proved that

6320Respondent prescribed and administered anabolic steroids without

6327medical indication because he did so for building muscles and

6337enhancing athletic performance. The question is whether

6344Respondent prescribed and administered these controlled

6350substances other than in the course of his professional

6359practice.

636059. As Respondent contends, Rogers v. Department of

6368Health , 920 So. 2d 27 (Fla. 1st DCA 2005), requires an element

6380of illicitness for a determination that the prescription or

6389administration is not in the course of the physician's

6398professional practice. Section 458.331(1)(ee) supplies this

6404element. The holding in Barr does not require a contrary

6414result. Here, Section 458.331(1)(ee) has supplied the element

6422of illicitness necessary to find a violation of Section

6431458.331(1)(q). The illicit nature of an act or omission may be

6442derived from any statute, so this situation is different from

6452merely recasting a medical record violation as Standard of Care

6462violation, at least where Petitioner has not pleaded a Section

6472458.331(1)(ee) violation.

647460. Section 458.331(2), Florida Statutes (1998), states:

6481When the board finds any person guilty of

6489any of the grounds set forth in subsection

6497(1), . . . it may enter an order imposing

6507one or more of the following penalties:

6514* * *

6517(b) Revocation or suspension of a license.

6524(c) Restriction of practice.

6528(d) Imposition of an administrative fine

6534not to exceed $5,000 for each count or

6543separate offense.

6545(e) Issuance of a reprimand.

6550(f) Placement of the physician on probation

6557for a period of time and subject to such

6566conditions as the board may specify,

6572including, but not limited to, requiring the

6579physician to submit to treatment, to attend

6586continuing education courses, to submit to

6592reexamination, or to work under the

6598supervision of another physician.

6602(g) Issuance of a letter of concern.

6609(h) Corrective action.

6612(i) Refund of fees billed to and collected

6620from the patient.

6623In determining what action is appropriate,

6629the board must first consider what sanctions

6636are necessary to protect the public or to

6644compensate the patient. Only after those

6650sanctions have been imposed may the

6656disciplining authority consider and include

6661in the order requirements designed to

6667rehabilitate the physician. All costs

6672associated with compliance with orders

6677issued under this subsection are the

6683obligation of the physician.

668761. Legislation raising the maximum fine from $5000 to

6696$10,000, became effective July 1, 1999. 5 However, absent an

6707explicit provision in the new legislation for retroactive

6715application, courts will not retroactively apply a new penalty.

6724McGann v. Florida Elections Commission , 803 So. 2d 763 (Fla. 1st

6735DCA 2001). Thus, in this case, the statute authorizes a fine of

6747no more than $5000 per count or offense.

675562. As in effect from May 14, 1998, through December 26,

67661999, Florida Administrative Code Rule 64B8-8.001 provides:

6773(1) Purpose. Pursuant to Section 2, Chapter

678086-90, Laws of Florida, the Board provides

6787within this rule disciplinary guidelines

6792which shall be imposed upon . . . licensees

6801whom it regulates under Chapter 458, F.S.

6808The purpose of this rule is to notify . . .

6819licensees of the ranges of penalties which

6826will routinely be imposed unless the Board

6833finds it necessary to deviate from the

6840guidelines for the stated reasons given

6846within this rule. The ranges of penalties

6853provided below are based upon a single count

6861violation of each provision listed; multiple

6867counts of the violated provisions or a

6874combination of the violations may result in

6881a higher penalty than that for a single,

6889isolated violation. Each range includes the

6895lowest and highest penalty and all penalties

6902falling between. The purposes of the

6908imposition of discipline are to punish the

6915. . . licensees for violations and to deter

6924them from future violations; to offer

6930opportunities for rehabilitation, when

6934appropriate; and to deter other . . .

6942licensees from violations.

694563. Former Florida Administrative Code Rule

695164B8-8.001(2)(m) punishes a medical records violation with a

6959reprimand to two years' suspension followed by probation and a

6969fine of $250-$5000. Former Florida Administrative Code Rule

697764B8-8.001(2)(q) punishes inappropriate prescribing with one

6983year's probation to revocation and a fine of $250-$5000. Former

6993Florida Administrative Code Rule 64B8-8.001(2)(t)3. punishes a

7000Standard of Care violation with two years' probation to

7009revocation and a fine of $250-$5000.

701564. Former Florida Administrative Code Rule 64B8-8.001(3)

7022establishes various aggravating and mitigating circumstances,

7028such as the degree of exposure of the patient or public to

7040injury or death, the legal status of the licensee at the time of

7053the offenses, the number of counts or separate offenses proved,

7063the number of times the same offenses have been committed by the

7075licensee previously, the licensee's disciplinary history, and

7082any pecuniary benefit inuring to the licensee.

708965. Based on Respondent's entire disciplinary record,

7096these are his first offenses. At least six years after these

7107offenses, Respondent committed the acts and omissions in 2005

7116and 2006 that resulted in the disciplinary proceedings described

7125above. To treat the 1998 and 1999 offenses as subsequent

7135offenses strains the notion of notice mentioned in the above-

7145cited portion of Former Rule 64B8-8.001(1). Petitioner selected

7153the order in which to prosecute these three cases, and its

7164choice does not transform the acts and omissions of 1998 and

71751999 into a third offense. Cf. Department of Public Safety v.

7186Mitchell , 152 So. 2d 764 (Fla. 3d DCA 1963). A disciplinary

7197rule must be construed against the agency due to the penal

7208nature of the disciplinary proceeding. Colbert v. Department of

7217Health , 890 So. 2d 1165 (Fla. 2004). However, the language of

7228the rule permits consideration of Respondent's disciplinary

7235history, as distinguished from the number of times he has

7245committed the same offenses, as an aggravating factor, so the

7255other discipline is an aggravating factor, even though the

7264present offenses must be considered a first offense.

727266. Although M. W.'s drug addiction and death cannot be

7282linked in any way to the acts and omissions of Respondent, the

7294potential for injury to M. W. was at least moderate when

7305Respondent prescribed anabolic steroids for bodybuilding and

7312weightlifting without ordering lab work. On these facts, as

7321noted above, the failure to document the lab results is

7331essentially duplicative of the Standard of Care violation

7339arising from the failure to order these tests, so, in

7349determining an appropriate penalty, Respondent is essentially

7356guilty only of a Standard of Care violation and a violation of

7368the inappropriate prescription of steroids.

737367. If this were a case in which increasingly serious

7383discipline had failed to produce corrective behavior, the

7391Administrative Law Judge would recommend revocation, but a less

7400harsh penalty is indicated due to the first-offense status of

7410these acts and omissions. On the other hand, the risk of injury

7422and, somewhat contradictorily, the disciplinary history require

7429a significant penalty.

7432RECOMMENDATION

7433It is

7435RECOMMENDED that the Board of Medicine enter a Final Order

7445finding Respondent guilty of violations of Section

7452458.331(1)(m), (t), and (q), Florida Statutes (1998), and

7460suspending his license for one year followed by three years'

7470probation, imposing a fine of $10,000, and assessing costs as

7481provided by law.

7484DONE AND ENTERED this 8th day of June, 2010, in

7494Tallahassee, Leon County, Florida.

7498___________________________________

7499ROBERT E. MEALE

7502Administrative Law Judge

7505Division of Administrative Hearings

7509The DeSoto Building

75121230 Apalachee Parkway

7515Tallahassee, Florida 32399-3060

7518(850) 488-9675 SUNCOM 278-9675

7522Fax Filing (850) 921-6847

7526www.doah.state.fl.us

7527Filed with the Clerk of the

7533Division of Administrative Hearings

7537this 8th day of June, 2010.

7543ENDNOTES

75441 . After setting the case for final hearing January 7-11, 2008,

7556the first Administrative Law Judge disqualified herself by Order

7565entered December 7, 2007. On December 27, 2007, the new

7575Administrative Law Judge granted a motion for continuance filed

7584by Respondent, and reset the hearing for April 22-25, 2008. On

7595April 1, 2008, Respondent filed a Motion to Continue Formal

7605Hearing due to the need for more time for discovery, and

7616Petitioner supported the motion. On April 3, 2008, the second

7626Administrative Law Judge abated the case.

7632Based on joint status reports filed May 2, 2008, and June 27,

76442008, the Administrative Law Judge extended the abatement. By

7653joint status report filed October 2, 2008, Petitioner objected

7662to Respondent's claim that the abatement needed to be extended a

7673third time. After a conference call, the Administrative Law

7682Judge extended the abatement 30 days. On November 7, 2008, the

7693parties filed another joint status report, disagreeing again on

7702whether the case was ready to be set for hearing. After a

7714conference call, the Administrative Law Judge extended the

7722abatement about five weeks and transferred the case to a third

7733Administrative Law Judge.

7736On December 12, 2008, the parties filed a joint status report,

7747in which Petitioner reported that the prior delays were due to

7758the inability of the parties to obtain the cooperation of the

7769U.S. Department of Justice, Drug Enforcement Administration,

7776which had recently responded to a subpoena. Respondent claimed

7785that the case was not ready for hearing because the Drug

7796Enforcement Administration had not agreed to a deposition of any

7806of its agents or investigators.

7811After a conference call on January 12, 2009, the Administrative Law Judge scheduled the case for final hearing on

7830June 16-19, 2009. On May 28, 2009, Petitioner filed a Motion to

7842Reschedule Final Hearing, and Respondent joined in the motion.

7851After a conference call on June 1, 2009, the Administrative Law

7862Judge continued the hearing to September 15-18, 2009. On

7871September 1, 2009, Respondent filed a Motion for Brief

7880Continuance, based on problems in arranging a deposition of a

7890Drug Enforcement Administration agent. On September 2, 2009,

7898the Administrative Law Judge conducted a conference call, and,

7907the next day, issued an Order continuing the final hearing to

7918December 8-11, 2009.

7921On October 26, 2009, Respondent filed a Motion to Disqualify the Administrative Law Judge on the ground that he had issued a

7943recommended order on September 21, 2009, in a different

7952disciplinary case involving Respondent and had rejected certain

7960testimony of Respondent as not credible. On the same day, the

7971Administrative Law Judge granted the motion and the undersigned

7980Administrative Law Judge was assigned the case at that time.

7990On November 20, 2009, Respondent filed an Unopposed Motion for

8000Continuance due to discovery problems. After a conference call

8009on November 23, 2009, the Administrative Law Judge issued an

8019Order Granting Continuance on November 24, 2009, and reset the

8029final hearing for January 11-15, 2010.

80352 . By stipulation, there is no evidence that M. W. took the

8048Demerol from OWC.

80513 . Petitioner Exhibit 5, p. 71.

80584 . Petitioner Exhibit 5, p. 72.

80655 . Chap. 99-397, Laws of Fla. § 99. This provision became

8077effective July 1, 1999. Chap. 99-397 Laws of Fla. § 208.

8088COPIES FURNISHED:

8090R. S. Power, Agency Clerk

8095Department of Health

80984052 Bald Cypress Way, Bin A02

8104Tallahassee, Florida 32399-1701

8107Josefina M. Tamayo, General Counsel

8112Department of Health

81154052 Bald Cypress Way, Bin A02

8121Tallahassee, Florida 32399-1701

8124Dr. Ana M. Viamonte Ros, Secretary

8130State Surgeon General

8133Department of Health

81364052 Bald Cypress Way, Bin A00

8142Tallahassee, Florida 32399-1701

8145Larry McPherson, Jr., Executive Director

8150Board of Medicine

8153Department of Health

81564052 Bald Cypress Way

8160Tallahassee, Florida 32399

8163Kenneth J. Metzger

8166Metzger & Associates, P.A.

81701637 Metropolitan Boulevard, Suite C-2

8175Tallahassee, Florida 32308

8178Sharon B. Roberts, Esquire

8182Strawn & Monaghan, P.A.

818654 Northeast Fourth Avenue

8190Delray Beach, Florida 33483

8194Kathryn L. Kasprzak, Esquire

81982826 Osprey Creek Lane

8202Orlando, Florida 32825

8205Greg S. Marr, Esquire

8209Assistant General Counsel

8212Department of Health

82154052 Bald Cypress Way, Bin C-65

8221Tallahassee, Florida 32399-3265

8224NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

8230All parties have the right to submit written exceptions within

824015 days from the date of this Recommended Order. Any exceptions

8251to this Recommended Order should be filed with the agency that

8262will issue the Final Order in this case.

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Date
Proceedings
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Date: 08/30/2010
Proceedings: Agency Final Order
PDF:
Date: 08/30/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 06/23/2010
Proceedings: Respondent's Exceptions to Recommended Order filed.
PDF:
Date: 06/08/2010
Proceedings: Recommended Order
PDF:
Date: 06/08/2010
Proceedings: Recommended Order (hearing held January 11-13, 2010). CASE CLOSED.
PDF:
Date: 06/08/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
Date: 03/31/2010
Proceedings: Transcript (volume I of VI) filed.
PDF:
Date: 03/31/2010
Proceedings: Notice of Respondent Counsel's Firm Change filed.
PDF:
Date: 03/31/2010
Proceedings: Respondent's Response to Order to Show Cause filed.
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Date: 03/29/2010
Proceedings: Petitioner's Response to Order to Show Cause filed.
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Date: 03/26/2010
Proceedings: Order to Show Cause.
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Date: 03/22/2010
Proceedings: Respondent`s Proposed Recommended Order filed.
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Date: 03/22/2010
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 03/19/2010
Proceedings: Notice of Respondent Counsel's Firm Change filed.
PDF:
Date: 03/09/2010
Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by March 22, 2010).
PDF:
Date: 03/08/2010
Proceedings: Respondent's Motion for Additional Brief Extension to File Proposed Recommended Orders filed.
PDF:
Date: 02/12/2010
Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by March 12, 2010).
PDF:
Date: 02/11/2010
Proceedings: Respondent's Unopposed Motion for Extension of Deadline for Filing Proposed Recommended Orders filed.
PDF:
Date: 01/29/2010
Proceedings: Petitioner's Response to Respondent's Motion to Strike Portions of the Deposition of Daniel Greenwald, M.D filed.
PDF:
Date: 01/19/2010
Proceedings: Petitioner's Notice of Intent to Respond to Respondent's Motion to Strike Portions of the Deposition of Daniel Greenwald, M.D filed.
Date: 01/14/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/11/2010
Proceedings: Respondent's Motion to Strike Portions of the Deposition of Daniel Greenwald, M.D., filed.
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Date: 01/07/2010
Proceedings: Respondent's Reply To Petitioner's Response to Respondent's Motion to Dismiss filed.
PDF:
Date: 01/07/2010
Proceedings: Respondent's Notice of Appearance of Additional Counsel filed.
PDF:
Date: 01/07/2010
Proceedings: Petitioner's Response to Respondent's Motion Opposing the Admissibility of Certain Records of Regularly Conducted Business Activity filed.
PDF:
Date: 01/07/2010
Proceedings: Petitioner's Response To Respondent's Motion To Dismiss and Motion To Expand The Page Limit of its Proposed Recommended Order for that Purpose filed.
PDF:
Date: 01/05/2010
Proceedings: Respondent's Motion Opposing The Admissibility of Certain of Regularly Conducted Business Activity filed.
PDF:
Date: 01/04/2010
Proceedings: Joint Pre-Hearing Stipulation filed.
PDF:
Date: 12/30/2009
Proceedings: Motion to Dismiss filed.
PDF:
Date: 12/22/2009
Proceedings: Revised Notice of Taking Deposition in Lieu of Live Testimony at Final Hearing (revised as to time only) filed.
PDF:
Date: 12/22/2009
Proceedings: Notice of Taking Deposition in Lieu of Live Testimony at Final Hearing filed.
PDF:
Date: 12/14/2009
Proceedings: Respondent's Notice of Compliance with Disclosure of Witnesses and Exhibits filed.
PDF:
Date: 12/14/2009
Proceedings: Petitioner's Updated Notice of Providing Disclosure of Petitioner's Exhibits and Witnesses filed.
PDF:
Date: 12/09/2009
Proceedings: Notice of Petitioner Providing Respondent Documents in Response to Respondent's Third Request for Production filed.
PDF:
Date: 12/09/2009
Proceedings: Order Granting Unopposed Motion to Shorten Time for Written Discovery Response.
PDF:
Date: 12/09/2009
Proceedings: Respondent's Unopposed Motion to Shorten Time for Written Discovery Response (with attachments) filed.
PDF:
Date: 12/03/2009
Proceedings: Notice of Taking Discovery Deposition Duces Tecum filed.
PDF:
Date: 12/03/2009
Proceedings: Notice of Taking Telephonic Discovery Depositon Duces Tecum filed.
PDF:
Date: 12/01/2009
Proceedings: Amended Notice of Taking Discovery Deposition Duces Tecum filed.
PDF:
Date: 12/01/2009
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 12/01/2009
Proceedings: Revised Notice of Taking Deposition (revised as to time) filed.
PDF:
Date: 11/30/2009
Proceedings: Notice of Taking Discovery Deposition Duces Tecum (Daniel Greenwald) filed.
PDF:
Date: 11/25/2009
Proceedings: Notice of Taking Deposition (Dr. Pendergraft) filed.
PDF:
Date: 11/25/2009
Proceedings: Notice of Respondent's Third Request to Produce filed.
PDF:
Date: 11/24/2009
Proceedings: Notice of Hearing (hearing set for January 11 through 15, 2010; 9:00 a.m.; Orlando, FL).
PDF:
Date: 11/24/2009
Proceedings: Order Granting Continuance.
Date: 11/23/2009
Proceedings: CASE STATUS: Motion Hearing Held.
Date: 11/23/2009
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 11/20/2009
Proceedings: Respondent's Unopposed Motion for Continuance filed.
PDF:
Date: 11/20/2009
Proceedings: Notice of Taking Telephonic Deposition Duces Tecum (of M. Ferguson) filed.
PDF:
Date: 11/16/2009
Proceedings: Respondent's Notice of Compliance with Disclosure of Witnesses and Exhibits filed.
PDF:
Date: 11/13/2009
Proceedings: Notice of Taking Deposition Duces Tecum (J. Jones) filed.
PDF:
Date: 11/13/2009
Proceedings: Notice of Taking Deposition Duces Tecum (C. Herring, Jr.) filed.
PDF:
Date: 11/13/2009
Proceedings: Amended Notice of Intent to Offer Evidence Under Section 90.803(6)(a), Florida Statutes-Henry Schein, Inc. filed.
PDF:
Date: 11/12/2009
Proceedings: Notice of Taking Telephonic Deposition Duces Tecum filed.
PDF:
Date: 11/06/2009
Proceedings: Amended Notice of Intent to Offer Evidence Under Section 90.803(6)(a), Florida Statutes General Injectables and Vaccines, Inc. filed.
PDF:
Date: 11/06/2009
Proceedings: Petitioner's Disclosure of Witnesses and Exhibits (exhibits not attached) filed.
PDF:
Date: 11/02/2009
Proceedings: Notice of Unavailability and Absence from Jurisdiction filed.
PDF:
Date: 10/29/2009
Proceedings: Petitioner's Response to Respondent's Requests for Copies Regarding Petitioner's Subpoenas for Production from Non Parties filed.
PDF:
Date: 10/29/2009
Proceedings: Respondent's Request for Copies Regarding Petitioner's Subpoena for Production from Non Party (Henry Schein, Inc.) filed.
PDF:
Date: 10/29/2009
Proceedings: Respondent's Request for Copies Regarding Petitioner's Subpoena for Production from Non Party (General Injectibles and Vaccines, Inc.) filed.
PDF:
Date: 10/27/2009
Proceedings: Notice of Taking Telephonic Deposition Duces Tecum in Lieu of Live Testimony at Final Hearing (D.Remondino-Tomaselli) filed.
PDF:
Date: 10/27/2009
Proceedings: Notice of Taking Telephonic Deposition Duces Tecum In Lieu of Live Testimony at a Final Hearing (S.Houchins) filed.
PDF:
Date: 10/26/2009
Proceedings: Order Granting Motion for Disqualification.
PDF:
Date: 10/26/2009
Proceedings: Motion for Disqualification filed.
PDF:
Date: 09/22/2009
Proceedings: Notice of Cancellation of Deposition (Gina Daniel Sweeney) filed.
PDF:
Date: 09/21/2009
Proceedings: Notice of Taking Deposition Ad Testificandum (Gina Daniel Sweeney) filed.
PDF:
Date: 09/18/2009
Proceedings: Notice of Taking Deposition (Gina Daniel Sweeney) filed.
PDF:
Date: 09/17/2009
Proceedings: Amended Notice of Taking Deposition Ad Testificandum (Heidi Mullis) filed.
PDF:
Date: 09/16/2009
Proceedings: Notice of Taking Deposition (Heidi Mullis) filed.
PDF:
Date: 09/09/2009
Proceedings: Amended Administrative Complaint filed.
PDF:
Date: 09/09/2009
Proceedings: Order Granting Respondent`s Motion for Modification of Pre-hearing Instructions.
PDF:
Date: 09/08/2009
Proceedings: Notice of Taking Deposition (of M.Spielvogel) filed.
PDF:
Date: 09/08/2009
Proceedings: Notice of Taking Deposition (of T. Velez) filed.
PDF:
Date: 09/08/2009
Proceedings: Notice of Taking Deposition (of P.Sibley) filed.
PDF:
Date: 09/04/2009
Proceedings: Notice of Taking Discovery Deposition (of P. White) filed.
PDF:
Date: 09/04/2009
Proceedings: Notice of Taking Discovery Deposition (of F. White) filed.
PDF:
Date: 09/04/2009
Proceedings: Motion for Modification of Order of Pre-hearing Instructions filed.
PDF:
Date: 09/03/2009
Proceedings: Order Granting Continuance, Granting Motion to Amend Administrative Complaint, and Re-scheduling Hearing (hearing set for December 8 through 11, 2009; 9:00 a.m.; Orlando, FL).
Date: 09/02/2009
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 09/01/2009
Proceedings: Motion for Brief Continuance filed.
PDF:
Date: 09/01/2009
Proceedings: Petitioner's Notice of Providing Response to Respondent's Request to Produce filed.
PDF:
Date: 09/01/2009
Proceedings: Petitioner's Notice of Providing Answers to Respondent's Interrogatories filed.
PDF:
Date: 09/01/2009
Proceedings: Notice to Amend Notice of Taking Discovery Deposition (of B. Boggess) filed.
PDF:
Date: 08/31/2009
Proceedings: Order Denying Petitioner`s Motion to Amend Administrative Complaint.
PDF:
Date: 08/28/2009
Proceedings: Respondent's Notice of Filing Corrected Response to Subpoena filed.
PDF:
Date: 08/28/2009
Proceedings: Notice of Unavailability and Absence from Jurisdiction filed.
PDF:
Date: 08/28/2009
Proceedings: Petitioners Notice of Obtaining Circuit Court Order filed.
PDF:
Date: 08/28/2009
Proceedings: Notice of Petitioner Providing Respondent Documents Obtained from Non-party filed.
PDF:
Date: 08/27/2009
Proceedings: Respondent's Amended Opposition to Motion to Amend Administrative Complaint filed.
PDF:
Date: 08/26/2009
Proceedings: Motion to Hold Record Open and Request for Expedited Hearing filed.
PDF:
Date: 08/25/2009
Proceedings: Respondent's Opposition to Motion to Take Official Recognition of Rule 64B8-8.001, F.A.C filed.
PDF:
Date: 08/25/2009
Proceedings: Notice of Taking Discovery Deposition (Amended Date and Location) filed.
PDF:
Date: 08/25/2009
Proceedings: Notice of Taking Discovery Deposition (of B. Boggess) filed.
PDF:
Date: 08/25/2009
Proceedings: Notice of Taking Discovery Deposition (of H. Leibowitz) filed.
PDF:
Date: 08/24/2009
Proceedings: Notice of Appearance of Co-counsel (of M. Ross) filed.
PDF:
Date: 08/24/2009
Proceedings: Respondent's Opposition to Motion to Amend Administrative Complaint filed.
PDF:
Date: 08/20/2009
Proceedings: Amended Motion to Amend Administrative Complaint filed.
PDF:
Date: 08/20/2009
Proceedings: Motion to Take Official Recognition (64B8-9.003) filed.
PDF:
Date: 08/20/2009
Proceedings: Motion to Take Official Recognition (64B8-8.001) filed.
PDF:
Date: 08/20/2009
Proceedings: Motion to Amend Administrative Complaint filed.
PDF:
Date: 08/20/2009
Proceedings: Notice of Taking Deposition in Lieu of Live Testimony at Final Hearing filed.
PDF:
Date: 08/19/2009
Proceedings: Amended Notice of Taking Deposition filed.
PDF:
Date: 08/18/2009
Proceedings: Petitioner's Notice of Seeking Clarification of Circuit Court Order and Request for Expedited Hearing filed.
PDF:
Date: 08/17/2009
Proceedings: Notice of Cancellation of Deposition Duces Tecum filed.
PDF:
Date: 08/14/2009
Proceedings: Notice of Reinstating Deposition Duces Tecum filed.
PDF:
Date: 08/14/2009
Proceedings: Petitioner's Notice of Obtaining Circuit Court Order filed.
PDF:
Date: 08/14/2009
Proceedings: Notice of Cancellation of Deposition Duces Tecum filed.
PDF:
Date: 08/11/2009
Proceedings: Notice of Deposition filed.
PDF:
Date: 08/10/2009
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 07/31/2009
Proceedings: Notice of Serving Respondent's Requests for Interrogatories and Production of Documents filed.
PDF:
Date: 07/30/2009
Proceedings: Petitioner's Notice of Seeking Circuit Court Order filed.
PDF:
Date: 07/22/2009
Proceedings: Petitioner's Notice of Method of Recording Testimony at Final Hearing filed.
PDF:
Date: 06/16/2009
Proceedings: Notice of Taking Deposition (of P. Sibley) filed.
PDF:
Date: 06/10/2009
Proceedings: Notice of Cancellation of Deposition Duces Tecum (of C. Roberts) filed.
PDF:
Date: 06/09/2009
Proceedings: Petitioner's Second Response to Respondent's Objections to Notice of Taking Deposition Duces Tecum and Motion for Protective Order filed.
PDF:
Date: 06/09/2009
Proceedings: Respondent's Reply to Petitioner's Response to Respondent's Objections to Petitioner's Notice of Taking Deposition Duces Tecum of Florida Department of Revenue Records Custodian filed.
PDF:
Date: 06/05/2009
Proceedings: Petitioner's Response to Respondent's Objections to Notice of Taking Deposition Duces Tecum and Motion for Protective Order filed.
PDF:
Date: 06/05/2009
Proceedings: Respondent's Objections to Notice of Taking Deposition Duces Tecum and Motion for Protective Order (Carol Roberts) filed.
PDF:
Date: 06/04/2009
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 06/03/2009
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for September 15 through 18, 2009; 9:00 a.m.; Orlando, FL).
Date: 06/01/2009
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 05/28/2009
Proceedings: (Petitioner's) Motion to Re-schedule Final Hearing filed.
PDF:
Date: 01/16/2009
Proceedings: Respondent`s Additional Response to Petitioner`s Notice of Intent to Offer Evidence Under Section 90.803(6)(a), F.S., filed.
PDF:
Date: 01/14/2009
Proceedings: Respondent`s Response to Petitioner`s Notice of Intent to Offer Evidence under Section 90.803(6)(a), Florida Statutes - Henry Schein filed.
PDF:
Date: 01/14/2009
Proceedings: Petitioner`s Response to Respondent`s Response to Petitioner`s Notice of Intent to Offer Evidence Under Section 90.803(6)(a), F.S. filed.
PDF:
Date: 01/13/2009
Proceedings: Respondent`s Response to Petitioner`s Notice of Intent to Offer Evidence under Section 90.803(6)(a), F.S filed.
PDF:
Date: 01/12/2009
Proceedings: Order Re-scheduling Hearing (hearing set for June 16 through 19, 2009; 9:00 a.m.; Orlando, FL).
PDF:
Date: 01/12/2009
Proceedings: Notice of Intent to Offer Evidence Under Section 90.803(6)(a), Florida Statues- Henry Schein filed.
Date: 01/12/2009
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 01/09/2009
Proceedings: Notice of Intent to Offer Evidence Under Section 90.803(6)(a), Florida Statues-General Injectables filed.
PDF:
Date: 01/06/2009
Proceedings: Petitioner`s Response to Respondent`s Request for Copies of Petitioner`s Subpoenaed Production of Documents from Non-party-Genral Injectables & Vacines, Inc. filed.
PDF:
Date: 12/12/2008
Proceedings: Joint Status Report filed.
PDF:
Date: 12/09/2008
Proceedings: Petitioner`s Notice of Production from Non-party filed.
PDF:
Date: 12/09/2008
Proceedings: Respondent`s Request for Copies of Petitioner`s Subpoena for Production of Documents from Non-party filed.
PDF:
Date: 12/03/2008
Proceedings: Petitioner`s Notice of Production from Non-party filed.
PDF:
Date: 12/03/2008
Proceedings: Petitioner`s Notice of Production from Non-party filed.
PDF:
Date: 12/02/2008
Proceedings: Petitioner`s Response to Respondent`s Request for Copies of Petitioner`s Subpoenaed Production of Documents from Non-party filed.
PDF:
Date: 11/20/2008
Proceedings: Notice of Transfer.
PDF:
Date: 11/18/2008
Proceedings: Order Continuing Case in Abeyance (parties to advise status by December 12, 2008).
Date: 11/18/2008
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 11/07/2008
Proceedings: Joint Status Report filed.
PDF:
Date: 11/04/2008
Proceedings: Respondent`s Request for Copies of Petitioner`s Subpoenaed Production of Documents from Non-party filed.
PDF:
Date: 10/20/2008
Proceedings: Petitioner`s Notice of Production from Non-Party filed.
PDF:
Date: 10/07/2008
Proceedings: Order Continuing Case in Abeyance (parties to advise status by November 7, 2008).
Date: 10/07/2008
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 10/02/2008
Proceedings: Joint Status Report filed.
PDF:
Date: 10/02/2008
Proceedings: Joint Status Report filed.
PDF:
Date: 09/10/2008
Proceedings: Notice of Serving Respondent`s Response to Petitioner`s Second Request for Production filed.
PDF:
Date: 07/03/2008
Proceedings: Notice of Appearance and Substitution of Counsel filed.
PDF:
Date: 07/02/2008
Proceedings: Order Continuing Case in Abeyance (parties to advise status by October 2, 2008).
PDF:
Date: 06/27/2008
Proceedings: Joint Status Report filed.
PDF:
Date: 05/06/2008
Proceedings: Order Continuing Case in Abeyance (parties to advise status by July 7, 2008).
PDF:
Date: 05/02/2008
Proceedings: Joint Status Report filed.
PDF:
Date: 05/01/2008
Proceedings: Notice of Serving Petitioner`s Response to Respondent`s Second Request for Production filed.
PDF:
Date: 04/22/2008
Proceedings: Notice of Serving Petitioner`s Response to Respondent`s First Request for Admissions and Second Request for Interrogatories filed.
PDF:
Date: 04/07/2008
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 04/04/2008
Proceedings: Notice of Appearance and Substitution of Counsel filed.
PDF:
Date: 04/03/2008
Proceedings: Order Granting Continuance and Placing Case in Abeyance (parties to advise status by May 5, 2008).
PDF:
Date: 04/01/2008
Proceedings: Motion to Continue Formal Hearing filed.
PDF:
Date: 04/01/2008
Proceedings: Notice of Respondent`s Second Interrogatories and First Request for Admissions filed.
PDF:
Date: 03/31/2008
Proceedings: Notice of Respondent`s Second Request to Produce filed.
PDF:
Date: 03/12/2008
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 01/02/2008
Proceedings: Notice of Change of Law Firm filed.
PDF:
Date: 12/27/2007
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for April 22 through 25, 2008; 10:00 a.m.; Orlando, FL).
PDF:
Date: 12/14/2007
Proceedings: Letter to Judge Hood from K. Kasprzak regarding conference call filed.
PDF:
Date: 12/07/2007
Proceedings: Order Granting Motion for Disqualification.
PDF:
Date: 12/03/2007
Proceedings: Motion for Initial Continuance filed.
PDF:
Date: 11/29/2007
Proceedings: Affidavit in Support of Respondent`s Motion for Disqualification filed.
PDF:
Date: 11/29/2007
Proceedings: Motion for Disqualification filed.
PDF:
Date: 10/01/2007
Proceedings: Notice of Serving Petitioner`s Response to Respondent`s First Request for Interrogatories and for Production of Documents filed.
PDF:
Date: 09/07/2007
Proceedings: Respondent`s Corrected Notice of Respondent`s First Set of Interrogatories, Respondent`s First Request to Produce and a Request for Public Records filed.
PDF:
Date: 09/06/2007
Proceedings: Respondent`s Notice of Serving Response to Petitioner`s First Request for Admissions filed.
PDF:
Date: 09/06/2007
Proceedings: Notice of Serving Respondent`s Responses to Petitioner`s First Request for Production of Documents and Petitioner`s First Request for Interrogatories filed.
PDF:
Date: 09/06/2007
Proceedings: Respondent`s Responses to Petitioner`s First Request for Interrogatories filed.
PDF:
Date: 09/04/2007
Proceedings: Respondent`s Notice of Serving Petitioner`s First Request for Interrogatories and First Request to Produce and a Request for Public Records filed.
PDF:
Date: 08/07/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/07/2007
Proceedings: Notice of Hearing (hearing set for January 7 through 11, 2008; 9:00 a.m.; Orlando, FL).
PDF:
Date: 07/30/2007
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 07/30/2007
Proceedings: Notice of Appearance (filed by K. Metzger).
PDF:
Date: 07/23/2007
Proceedings: Petitioner`s First Request for Production of Documents filed.
PDF:
Date: 07/23/2007
Proceedings: Petitioner`s First Request for Interrogatories filed.
PDF:
Date: 07/23/2007
Proceedings: Petitioner`s First Request for Admissions filed.
PDF:
Date: 07/23/2007
Proceedings: Notice of Serving Petitioner`s First Request for Interrogatories and Production of Documents filed.
PDF:
Date: 07/23/2007
Proceedings: Election of Rights filed.
PDF:
Date: 07/23/2007
Proceedings: Administrative Complaint filed.
PDF:
Date: 07/23/2007
Proceedings: Notice of Appearance (filed by I. Levine).
PDF:
Date: 07/23/2007
Proceedings: Agency referral filed.
PDF:
Date: 07/23/2007
Proceedings: Initial Order.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
07/23/2007
Date Assignment:
10/26/2009
Last Docket Entry:
08/30/2010
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
PL
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (2):

Related Florida Rule(s) (2):