08-004403PL Department Of Health, Board Of Medicine vs. Lucien Armand, M.D. Status: Closed Recommended Order on Wednesday, June 17, 2009.

Summary: Respondent violated the office surgery rule by failing to keep adequate records of Level III office surgery. He was not required to undergo inspection after he withdrew request for registration for Level II/III office surgery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case Nos. 08-4403PL

) DOH Case No. 2005-63004

LUCIEN ARMAND, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on April 6, 2009, by video

teleconference between Lauderdale Lakes and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Diane K. Kiesling

Assistant General Counsel

Robert A. Milne

Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Sean Ellsworth, Esquire

Ellsworth Law Firm, P.A.

1501 Collins Avenue, Suite 208

Miami Beach, Florida 33139

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent Lucien

Armand, M.D., violated Section 458.331(1)(nn), Florida Statutes

(2004), by having violated Florida Administrative Code Rules

64B8-9.009, 64B8-9.0091, and 64B8-9.0092, and Section

458.331(1)(m), Florida Statutes (2003), as alleged in an

Administrative Complaint filed by the Department of Health

before the Board of Medicine on March 28, 2006; and, if so, what

disciplinary action should be taken against his license to

practice medicine in the State of Florida.

PRELIMINARY STATEMENT

This case began with the filing by the Department of Health

before the Board of Medicine of a two-count Administrative

Complaint, DOH Case Number 2005-63004, against Respondent Lucien

Armand, M.D., an individual licensed to practice medicine in

Florida. On or about April 27, 2006, Respondent, through

counsel, filed a Petition for Formal Administrative Hearing and

Request for Complete Investigative File and Exhibits, and an

Election of Rights form signed by Respondent, disputing the

allegations of fact contained in the Administrative Complaint

and requesting a formal administrative hearing pursuant to

Sections 120.569(2)(a) and 120.57(1), Florida Statutes (2005).

On August 4, 2006, the matter was filed with the Division

of Administrative Hearings with a request that an administrative

law judge be assigned to conduct proceedings pursuant to Section

120.57(1), Florida Statutes (2006). The matter was designated

DOAH Case Number 06-2823PL and was assigned to the undersigned.

By Order entered October 10, 2006, that case was closed when the

parties represented that they had reached a tentative

settlement. Because that tentative settlement needed to be

approved by the Board of Medicine, DOAH Case No. 06-29823Pl was

closed with leave for either party to request that the matter be

reopened should their settlement not be accepted by the Board of

Medicine.

On August 29, 2008, Petitioner filed a Motion to Re-Open

Case, representing that the tentative settlement reached by the

parties had been rejected by the Board of Medicine. On

September 8, 2008, the Motion was granted and the matter was

reopened as DOAH Case No. 08-4403PL. By Order entered

September 22, 2008, all pleadings previously filed in DOAH Case

No. 06-2923PL were consolidated with this case.

This case was consolidated with another case involving the

parties, DOAH Case No. 08-4285PL, DOH Case No. 2006-38439, by

Order of Consolidation entered September 12, 2008. The two

cases were consolidated for purposes of hearing only. A

separate Recommended Order is being entered in DOAH Case No. 08-

4285PL.

The final hearing was scheduled to be held on November 7,

2008, by video teleconference between sites in Miami and

Tallahassee, Florida, by Notice of Hearing by Video

Teleconference entered September 12, 2008. The hearing was re-

scheduled twice at the request of Respondent.

On March 20, 2009, the parties filed a Joint Pre-Hearing

Stipulation, in which they identified certain facts and issues

of law they agreed on. To the extent relevant, those agreed-

upon facts and issues of law have been included in this

Recommended Order.

On March 31, 2009, an Order Granting Petitioner’s Motion

for Official Recognition was entered.

During the final hearing, Petitioner presented the

testimony of Melinda Gray, Debra Ann Conn, R.M., L.H.C.R.M., and

Philip Jacobson, M.D. Petitioner’s Exhibits 1 through 7, and 14

were admitted. Respondent testified on his own behalf and had

one exhibit admitted.

The two-volume Transcript of the final hearing was filed on

April 24, 2009. By Notice of Filing Transcript entered the same

day, the parties were informed that the Transcript had been

filed and that their proposed recommended orders were to be

filed on or by May 25, 2009. May 25, 2009, was a holiday, so

proposed orders were actually required to be filed on or before

May 26, 2009.

Petitioner’s Proposed Recommended Order and Dr. Armand’s

Memorandum in Support of a Recommended Order Dismissing

Administrative Complaints were filed on May 26, 2009. The post-

hearing proposals of both parties have been fully considered in

rendering this Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department"), is the agency of the State of

Florida charged with the responsibility for the investigation

and prosecution of complaints involving physicians licensed to

practice medicine in Florida. § 20.43 and Chs. 456 and 458,

Fla. Stat.

2. Respondent, Lucien Armand, M.D., is, and was at the

times material to this matter, a physician licensed to practice

medicine in Florida, having been issued license number ME 33997.

3. Dr. Armand is board-certified in general surgery by the

American Board of Surgery.

4. Dr. Armand’s mailing address of record at all times

relevant to this matter was 2071 Southwest 52nd Way, Plantation,

Florida 33317. At the times relevant, Dr. Armand practiced

medicine at 4100 South Hospital Drive, Suite 108, Plantation,

Florida 33317. The office at which Dr. Armand practiced

medicine was located very close to Plantation General Hospital

(hereinafter referred to as “Plantation”).

5. Dr. Armand has been the subject of three prior

disciplinary matters arising out of five separate cases.

Penalties were imposed in those three disciplinary matters. The

Department summarized those disciplinary matters in paragraph 34

of its Proposed Recommended Order:

In DPR Case Numbers 0019222, 0019123 and

0091224, Respondent was fined, received a

reprimand, and was required to complete 30

hours of Continuing Medical Education (CME)

in general vascular surgery and risk

management within the surgical practice. In

Case Number 94-10100, Respondent was

required to submit to and comply with an

evaluation at the University of Florida, to

pay a fine, was reprimanded, was required to

complete twenty hours of CME in general

surgery in performing Laparoscopic

Cholecystectomy, and was placed on Probation

for two (2) years. In Case Number 1999-

58474, Respondent was restricted from

performing Level II or above office surgery

as defined in Rule 64B8-9.009(1)(d), Florida

Administrative Code, until the Respondent

demonstrated to the Board that he had

successfully completed the University of

Florida Comprehensive Assessment and

Remedial Education Service (UF C.A.R.E.S.)

course and complied with all

recommendations, was reprimanded, was placed

on probation for two (2) years, was required

to attend the Florida Medical Association

“Quality Medical Record Keeping for health

Care Practitioners” course, was required to

perform 100 hours of community service, and

was required to reimburse the Department for

costs.

6. Dr. Armand, who is 70 years of age, has been practicing

medicine for 46 years. He has practiced medicine in Florida

since 1979. During the eight months prior to the final hearing

of this matter, Dr. Armand was practicing in South Sudan

pursuant to contract with the United States State Department.

B. Office Surgery Registration .

7. Section 458.309(3), Florida Statutes (2003)

requires that any physician in the State of Florida who performs

certain levels of surgery in his or her office, with one

exception not pertinent to this case, must first register his or

her office with the Department:

(3) All physicians who perform level 2

procedures lasting more than 5 minutes and

all level 3 surgical procedures in an office

setting must register the office with the

department unless that office is licensed as

a facility pursuant to chapter 395. The

department shall inspect the physician's

office annually unless the office is

accredited by a nationally recognized

accrediting agency or an accrediting

organization subsequently approved by the

Board of Medicine. The actual costs for

registration and inspection or accreditation

shall be paid by the person seeking to

register and operate the office setting in

which office surgery is performed.

been defined by the Board of Medicine (hereinafter referred to

as the “Board”) in Florida Administrative Code Rule 64B8-9.009

(hereinafter referred to as the “Office Surgery Rule”).

8. In summary, as relevant to this matter, any physician

who wishes to perform Level II as defined in the Office Surgery

Rule which will last more than 5 minutes or any Level III

Surgery in his or her office must register with the Department

and either undergo an annual inspection of the office by the

Department or obtain accreditation as specified in the statute.

If not performing the surgery specified in the statute, no

registration is required.

9. In furtherance of this process, the Department has

promulgated Florida Administrative Code Rule 64B8-9.0091 setting

out the “Requirement for Physician Office Registration:

Inspection or Accreditation” (hereinafter referred to as the

“Office Registration Rule”). This Rule further explains the

physician’s choices for completing the registration of an office

for Level II procedures by inspection or accreditation.

10. What is not proscribed by statute or rule is the

process by which a previously registered office may be

“unregistered” by a physician or precisely what happens when the

accreditation of an office expires.

C. Registration of Dr. Armand’s Office .

11. On or about April 16, 2003, Dr. Armand registered his

office to perform Level II procedures. His office was

designated as having Registration Number 331.

12. Following an inspection of Dr. Armand’s office

conducted on or about June 8, 2001, by the Florida Academy of

Cosmetic Surgeons, an organization approved at that time by the

accredited by the Department to perform Level II procedures in

his office. That accreditation was valid for three years, until

June 2004.

13. As of June 2004, the Florida Academy of Cosmetic

Surgeons was no longer approved as an accrediting organization

by the Board. Nor was Dr. Armand at that time performing any

procedures that required registration of his office pursuant to

the Office Registration Statute. Dr. Armand was effectively no

longer approved as a registered Level II office.

14. In July 2004, Dr. Armand spoke by telephone with

personnel in the Department’s Office of Surgery Registration and

Inspection Program (hereinafter referred to as the “OSRIP”),

about the status of his registration. Dr. Armand expressed

interest in continuing his office registration. He was,

consistent with existing statutory and rule law, told that he

would need to become reaccredited or submit to inspection in

order to be considered an office approved to conduct Level II or

Level III procedures.

15. As of September 22, 2004, Dr. Armand, having taken no

action to obtain accreditation or to request an inspection, and

having performed no Level II or Level III procedures in his

office, changed his mind about registering his office to perform

Level II or III procedures. On that date, he telephoned the

OSRIP and stated that he was only performing Level I procedures,

that he might want to perform Level II and III procedures in the

future, and that he would contact the OSRIP the following month.

Dr. Armand made this telephone call because he was considering

closing down his office surgery practice completely and was

trying to decide whether he wanted to make the effort to bring

his office back into compliance with the Office Surgery Rule:

No, at some point when I considered the

expenses involved into – For a period of

time, I did not operate in the office and I

did not have any procedures happen at Level

II or III. When I decided to re-equip the

office, to bring it up to date, up to Code

for the surgery and I considered the expense

involved and I figured that I was going to

be retired from surgery anyway because at

that time I was barely practicing, I was

going maybe two or three times in the office

a week for a few hours, because I was in

school studying for me [sic] Public Health

Degree, I was winding down my office.

I decided it was not necessary for me to

go into the expense of re-fitting, bring the

office up to Code or to inspection because I

was going to close down anyway, further down

the line, within a year, six months or a

year.

Page 179, Lines 2-25, Vol. II, Transcript of Final Hearing.

16. By letter dated October 29, 2004, Dr. Armand was

informed by the OSRIP that he needed to advise the office

whether he was accredited or would submit to an inspection,

alternative steps required to be registered pursuant to the

Office Registration Statute. He was also told that, if he did

not intend to perform officer surgery, he needed to submit

written documentation to that effect immediately. What law the

OSRIP was relying upon for this latter directive was not cited

in the letter or at hearing. An office registration application

form was provided to Dr. Armand.

17. On November 24, 2004, the OSRIP received a completed

Application for Office Surgery Registration (hereinafter

referred to as the “Application”) from Dr. Armand in which he

indicated that the wanted to perform Level II and Level III

surgery in his office. The Application contained the names of

other medical staff who were represented by Dr. Armand would be

“involved in the office surgery or anesthesia," an affirmation

that Dr. Armand was in compliance with the requirements for

performing office surgery established by Florida Administrative

Code Rule 64B8-9.009, and a representation that Dr. Armand would

immediately notify the Board of Medicine of any changes to his

registration information.

18. At that point, had Dr. Armand’s Application been

deemed complete, which it was not, Dr. Armand would have been

required to either provide proof of accreditation or submit to

an inspection by the Department pursuant to Florida

Administrative Code Rule 64B8-9.0091(2)(a), which provides, in

part, that “[u]nless the physician has previously provided

written notification of current accreditation by a nationally

recognized accrediting agency or an accrediting organization

approved by the Board the physician shall submit to an annual

inspection by the Department. . . .” This portion of the Office

Registration Rule, however, when read in context of the entire

Rule, applies by its terms only to instances where a physician

is requesting registration of an office. It does not by its

terms proscribe what happens if an office has previously been

registered by accreditation, the accreditation expires, and

subsequently, the physician does not “perform level 2 procedures

lasting more than 5 minutes [or any] level 3 surgical procedures

in an office setting . . . .”

19. Dr. Armand’s Application was found to be incomplete by

the Department because he had not designated why the Application

was being filed.

20. By letter dated December 8, 2004, the OSRIP notified

Dr. Armand that his Application was incomplete. Dr. Armand was

asked to either provide current accreditation or submit to

inspection. At no time did Dr. Armand comply with this request.

21. On February 23, 2005, having heard nothing from

Dr. Armand, the OSRIP changed his registration to “by

inspection” and proceeded to initiate the process to have

Dr. Armand’s office inspected.

22. By a March 15, 2005, email from Debbi Conn, the

individual designated by the Department to conduct the

inspection of Dr. Armand’s office, the OSRIP was notified that

she had spoken to Dr. Armand by telephone and that he had

indicated he no longer wished for his office to be registered.

Dr. Armand had also indicated, therefore, that he did not wish

to have his office inspected.

23. Although the Department could have reasonably

interpreted the statutory and rule provisions governing

registration of offices in which Level II and Level III surgery

can be performed to treat Dr. Armand’s registration as having

lapsed as of June 2004, when his accreditation ended, and

treated the Application as a new application for registration

which had now been withdrawn, the OSRIP concluded that an

inspection was still necessary. The OSRIP took the position

that once a physician has registered an office pursuant to the

Office Registration Statute, that office continues to be

“registered” indefinitely regardless of whether the office

accreditation expires or whether any procedures requiring

registration are being performed in the office.

24. On March 24, 2005, an email was sent to Dr. Armand by

Melinda K. Gray, Supervisor of the OSRIP, following up on a

telephone conversation she had had with Dr. Armand that day.

She told Dr. Armand in the email that his office was required to

be inspected despite the fact that he had withdrawn his

application. Ms. Gray informed him of the name of the inspector

and the scheduled time of the inspection in the email.

25. On March 28, 2005, Dr. Armand sent a letter to

Ms. Gray stating the following:

This letter is to document our conversation

of the March 24/05. I do want to state

again formally I no longer perform any class

II and III procedure [sic] in my office. I

have not done so in quite sometime [sic]

first because I was prohibited by the board

until 2004 and now I am in the process of

winding down my surgical career. Please

verify the last order of the board. It is

in the file. I apologize for having

mistakenly submitted last year the form to

maintain my office surgical registration

active. It was my error. I am hereby

formally requesting that you please void,

cancel, disregard, delete it from my file.

If there is any other procedure or action

required beyond this letter to do so please

inform me and I will promptly comply.

I thank you in advance for your patience and

understanding.

26. An employee in Dr. Armand’s office faxed a document to

Ms. Conn on April 1, 2005, indicating that Dr. Armand still did

not believe he needed to be inspected. Ms. Conn responded that

she would be there on April 4, 2005, as scheduled.

D. The April 4, 2005, Inspection .

27. As Dr. Armand had been previously informed, an

inspection of his office was conducted by Ms. Conn on April 4,

2005. Dr. Armand was not present.

28. Not surprisingly, since Dr. Armand had not performed

anything but Level I surgery since his accreditation ended in

June 2004, and he had represented that he was no longer

interested in bringing his office up to standard, his office did

not meet the requirements of Florida Administrative Code Rule

64B8-9.009.

29. The following deficiencies were found on April 4,

2005:

a. The office equipment failed to meet the requirements of

There was no working defibrillator, dantrolene, equipment

comparable to a free-standing ambulatory surgical center (full

monitoring equipment, including an anesthesia machine, EKG,

blood pressure, pulse socks, CO2 monitors and a crash cart with

a defibrillator or an AD that has been bio-medically inspected),

or an up-to-date and complete crash cart. These deficiencies

would present an immediate and imminent danger to patients, but

only if Level II and/or Level III procedures were being

performed in the office, which they were not;

b. Medications required by Florida Administrative Code

Rule 64B8-9.009(4)(a)3.a. on the crash cart were out of date or

missing. Again, this would present an immediate and imminent

danger to patients, but only if Level II and/or Level III

procedures were being performed in the office;

c. The office lacked surgical logs, a policy and procedure

manual, risk management program, adverse incident reporting

system, required signage, evidence of compliance with Basic Life

Support Certification, evidence of Advanced Cardiac Life Support

Certification (which Dr. Armand had, but, because he was not at

the office during the inspection, was unavailable to provide to

Ms. Conn), or any cleaning sterilization, infection control or

emergency procedures. See Fla. Admin. Code R. 64B8-9.009(2)(c),

(i), (j), (k), (l), and (4)(b)2.

30. No personnel records for Philip Jacobson, M.D., or

Barry Miller, ARNP, the two “medical staff” listed by Dr. Armand

on his sworn Application as individuals who would be involved in

the provision of surgery in his office, were found during the

inspection. Dr. Jacobson, who testified at hearing,

convincingly testified that, although he had worked with

Dr. Armand during one office procedure, described, infra , he had

never agreed to any long-term arrangement with Dr. Armand as

suggested on the Application.

31. At the conclusion of the April 4, 2005, inspection, a

copy of the deficiency report was signed by “Clare,” who had

been present at Dr. Armand’s office during the inspection and

was apparently employed there. Clare was given a copy of the

report and the appropriate rule, and was told that Dr. Armand

could file a plan of correction within 30 days. Clare agreed to

give the information to Dr. Armand. No correction plan was

submitted to the Department by Dr. Armand.

E. Findings Concerning Patient D.V.

32. During the April 4, 2005, inspection, Ms. Conn found a

narcotics log concerning one patient, Patient D.V. The log

indicated that an abdominoplasty had been performed on Patient

D.V. on May 28, 2004, which was before Dr. Armand’s

accreditation as an office registered to perform Level II and

III surgery expired. The procedure had been performed under

general anesthesia administered by Dr. Jacobson, as a Level III

procedure.

33. On further investigation, Ms. Conn was unable to find

the following records concerning the procedure performed on

Patient D.V.: pre-operative evaluation; patient/procedure

records; informed consent; surgical log; operative report;

recovery notes; discharge orders, post-operative vital signs;

post-operative care records; and a pathology report for tissue

sent to pathology for examination.

34. Before administering anesthesia to Patient D.V.,

Dr. Jacobson had visited Dr. Armand’s office. That visit took

place on January 8, 2004. During the visit, Dr. Jacobson found

expired medications, a vaporizer with gasses of undetermined

date, and a broken defibrillator. Dr. Jacobson pointed out

these problems to Dr. Armand.

35. Because of what he found on January 8, 2004,

Dr. Jacobson brought his own medications, vaporizer, and

defibrillator for use during the procedure performed on Patient

D.V. As of May 28, 2004, Dr. Armand had not disposed of the

expired medications found by Dr. Jacobson, and the broken

vaporizer and defibrillator were still in the office.

36. Ms. Conn spoke to Dr. Armand by telephone on April 4,

2005, who reiterated that he did not intend to perform Level II

or Level III surgery. Dr. Armand also incorrectly stated that

he had not performed any Level II or Level III surgery in his

office since 2002. When asked about his treatment in 2004 of

Patient D.V., Dr. Armand denied having performed the procedure.

When Ms. Conn told him about the records she had found

concerning Patient D.V., Dr. Armand hung up the telephone.

CONCLUSIONS OF LAW

A. Jurisdiction .

37. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

B. The Burden and Standard of Proof .

38. The Department seeks to impose penalties against

Dr. Armand’s license through the Administrative Complaint that

include suspension or revocation of his license and/or the

imposition of an administrative fine. Therefore, the Department

has the burden of proving the specific allegations of fact that

support its charge that Dr. Armand committed the statutory and

rule violations alleged in the Administrative Complaint by clear

and convincing evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); Pou v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); Nair v. Department

of Business and Professional Regulation , 654 So. 2d 205 (Fla.

of fact shall be based on a preponderance of the evidence,

except in penal or licensure disciplinary proceedings or except

as otherwise provided by statute.").

39. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C. The Charges of the Administrative Complaint .

40. Section 458.331(1), Florida Statutes, authorizes the

Board to impose penalties against Florida physicians ranging

from the issuance of a letter of concern to revocation of the

physician's license to practice medicine in Florida if the

physician commits one or more acts specified therein.

41. The two-count Administrative Complaint alleges that

Dr. Armand violated the following provisions of Section

458.331(1), Florida Statutes:

a. Count One: Section 458.331(1)(nn), Florida Statutes

(2004), by violating Florida Administrative Code Rules 64B8-

9.009, 64B8-9.0091, and 64B8-9.0092, as detailed more

specifically in the allegations of fact in support of the

Administrative Complaint; and

b. Count Two: Section 458.331(1)(m), Florida Statutes

(2003).

42. In determining whether Dr. Armand has committed the

alleged statutory violations, only those specific factual

grounds alleged by the Department in the Administrative

Complaint can form the basis of a finding of violation. See

Trevisani v. Department of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Cottrill v. Department of Insurance , 685 So. 2d 1371

(Fla. 1st DCA 1996). As the Department acknowledged in its

Proposed Recommended Order “[d]ue process prohibits the

Department from taking disciplinary action against a licensee

based on matters not specifically alleged in the charging

instrument, unless those matters have been tried by consent.

See Shore Village Property Owners’ Association, Inc . v.

Department of Environmental Protection , 824 So. 2d 208, 210

(Fla. 4th DCA 2002); and Delk v. Department of Professional

Regulation , 595 So. 2d 966,967 (Fla. 5th DCA 1992).”

43. In addressing the charges against Dr. Armand, it is

recognized that the Board is the agency which has been charged

with responsibility for administering the Medical Practice Act,

Chapter 458, Florida Statutes, and the Rules relevant to this

matter adopted by the Board. The Board’s interpretation of

those provisions of law that it has been charged by the

legislature to administer must be given great weight. See

Phillips v. Board of Dentistry , 884 So. 2d 78 (Fla. 4th DCA

2004).

44. It also recognized, however, that "the conduct proved

must legally fall within the statute or rule claimed [in the

charging instrument] to have been violated." Delk v. Department

of Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992). In deciding whether "the statute or rule claimed to have

been violated" was in fact violated, as alleged, if there is any

reasonable doubt, that doubt must be resolved in favor of the

licensee. See Whitaker v. Department of Insurance and

Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah v.

Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

D. Count One; Section 458.331(1)(nn), Florida Statutes

(2004) .

45. Section 458.331(1)(nn), Florida Statutes (2004),

defines the following disciplinable offense:

(nn) Violating any provision of this

chapter or chapter 456, or any rules adopted

pursuant thereto.

46. Count One of the Amended Administrative Complaint

alleges more specifically that Dr. Armand violated Section

458.331(1)(nn), Florida Statutes (2004), by having violated

Florida Administrative Code Rules 64B8-9.009, 64B8-9.0091, and

64B8-9.0092, as detailed more specifically in the allegation of

fact in support of the Administrative Complaint.

47. The Department proved clearly and convincingly that

the deficiencies alleged in the Administrative Complaint existed

during the inspection of Dr. Armand’s office on April 4, 2005.

That does not, however, resolve this matter. The Board still

should consider, in reaching a final decision in this case, (a)

whether Dr. Armand was required at the time of the inspection to

comply with Florida Administrative Code Rules 64B8-9.009, 64B8-

9.0091, and 64B8-9.0092 (hereinafter referred to as the “Rule

Compliance Issue”), and (b) whether an inspection of his office

was even authorized (hereinafter referred to as the “Inspection

Issue”).

48. In addressing the Rule Compliance Issue and Inspection

Issue, it is recognized that the Board’s interpretation of

Section 458.309(3), Florida Statutes, and the pertinent Rules

may be sufficient to allow the Board to adopt appropriate rules,

which would put physicians on notice, consistent with the

Department’s position in this case. It is questionable,

however, whether the interpretation asserted by the Department

should be relied upon to impose discipline.

49. In addressing the Rule Compliance Issue and Inspection

Issue, the following are the pertinent facts:

a. Dr. Armand, who wanted to “perform level 2 procedures

lasting more than 5 minutes and . . . level 3 surgical

procedures in an office setting” was required to, and did

register his office based upon accreditation valid through June

2004. During this period of time, Dr. Armand was subject to

discipline by the Board for failing to comply with the Office

Surgery Rule;

b. As of June 2004, when the accreditation of his office

expired and no inspection of his office was performed by the

Department, Dr. Armand was not entitled to be registered

pursuant to the Office Registration Statute or the Office

Registration Rule;

c. Although Dr. Armand sought registration or continued

registration of his office when he filed the Application, he

withdrew that request before any inspection was conducted; and

d. Finally, between June 2004 and the date of the

inspection of Dr. Armand’s office, Dr. Armand did not “perform

level 2 procedures lasting more than 5 minutes [or] . . . level

3 surgical procedures in an office setting.”

50. According to the Department, despite the foregoing

facts, Dr. Armand continued to be required to provide proof of

accreditation or submit to an inspection, regardless of whether

he was performing “level 2 procedures lasting more than 5

minutes and all level 3 surgical procedures in . . .“ his

office. Having expressed an interest in continuing his

registration and having failed to provide proof of

accreditation, the Department goes on to assert that he was,

therefore, required to undergo an inspection. Finally, the

Department asserts that, having been required to undergo an

inspection, his failure to meet the requirements to be

performing Level II and Level III procedures of the Office

Surgery Rule, despite the failure to prove he actually was

performing Level II or Level III surgery, entitles the Board to

impose discipline on Dr. Armand.

51. The difficulty with the Department’s argument is that

the Office Registration Statute, the Office Surgery Rule and the

Office Registration Rule do not specifically authorize the

Department to insist upon an inspection of a physician’s office

under the circumstances of this case, at least not for purposes

of imposing discipline on that physician. Registration is only

required by the Office Registration Statute if a physician

intends to “perform level 2 procedures lasting more than 5

minutes [or] . . . level 3 surgical procedures in an office

setting.” While specifying when registration is required, the

Office Registration Statute and the Office Registration Rule are

silent as to what the physician must do when the physician is

not longer performing any surgery requiring registration. Most

significantly, the Office Registration Statute and the Office

Registration Rule are silent with regard to whether the

Department may conduct an inspection when a physician is no

longer performing any surgery requiring registration. Despite

this silence, the Department insists it may require that a

physician submit to an inspection and must continue to comply

with the Office Surgery Rule even though he or she is no longer

performing “level 2 procedures lasting more than 5 minutes [or]

. . . level 3 surgical procedures in an office setting.”

52. Based upon the forgoing it is recommended that the

Board should forego the position taken by the Department in this

case because the Office Registration Statute and the Board’s

rules do not clearly authorize forcing a physician to undergo an

inspection or to comply with the Office Surgery Rule when that

physician is no longer performing any procedure defined in the

Office Registration Statute.

53. The Board should also forego the position asserted by

the Department because of the specific circumstances of this

case. Dr. Armand had decided to close his office surgery

practice long before the Department’s inspection. Indeed, he

decided not to pursue registration after June 2004 because he

knew his office was not in compliance with the Office Surgery

Rule and he did not want to expend the funds which would be

required to bring his office into compliance due to his

impending retirement from office surgery.

54. The Board should also forego the position asserted by

the Department because all the Department’s inspection proved is

that, on a single date, April 4, 2005, a physician who had not

performed nor intended to perform Level II procedure “lasting

more than 5 minutes” or any Level III procedure in his office,

and who was not, therefore, required to register his office by

Office Registration Statute, was not prepared to perform such

surgery.

55. Finally, the Board should forego the position asserted

by the Department in this disciplinary matter and pursue the

adoption of rules which would put physicians on notice of what

is required once accreditation expires, an inspection is not

longer valid, and the physician either intends to continue

performing Level II and/or Level III procedures in the office or

to stop performing such procedures.

56. Based upon the foregoing it is concluded that the

Department failed to prove clearly and convincingly that

Dr. Armand violated the Office Registration Statute, by having

violated Florida Administrative Code Rules 64B8-9.009, 64B8-

9.0091, and 64B8-9.0092, as detailed more specifically in the

allegation of fact in support of the Administrative Complaint.

Should the Department, however, reject the undersigned’s

conclusions of law on this matter, it would be appropriate for

the Board to conclude that the evidence did prove clearly and

convincingly that Dr. Armand violated the Office Registration

Statute, by having violated Florida Administrative Code Rules

64B8-9.009, 64B8-9.0091, and 64B8-9.0092, as detailed more

specifically in the allegation of fact in support of the

Administrative Complaint.

E. Count Two; Violation of Section 458.331(1)(m), Florida

Statutes (2003) .

57. Section 458.331(1)(m), Florida Statutes (2003),

defines the following disciplinable offense:

Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

58. In the Administrative Complaint it is alleged that

Dr. Armand failed to keep adequate medical records in violation

of Section 458.331(m), Florida Statutes (2003), in one or more

of the following ways concerning his medical chart for Patient

D.V.:

a. A consent that includes the risks or

possible complications;

b. The verbiage required by Rule

64B8-0.009(2)(a), Florida Administrative

Code (FAC);

c. an immediate pre-op form that was

completed by Respondent;

d. an immediate pre-op form that was

signed by Respondent;

e. Recovery notes;

f. Discharge order;

g. Post-op vital signs;

h. Operative report; and

i. A pathology report.

The Department proved clearly and convincingly that Dr. Armand

failed to keep medical records documenting these matters as

alleged in the Administrative Complaint. Therefore, it is

concluded that the Department proved clearly and convincingly

that Dr. Armand violated Section 458.331(1)(m), Florida Statutes

(2003), as alleged in the Administrative Complaint.

F. The Appropriate Penalty .

59. In determining the appropriate punitive action to

recommend to the Board in this case, it is necessary to consult

the Board's "disciplinary guidelines," which impose restrictions

and limitations on the exercise of the Board's disciplinary

authority under Section 458.331, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).

60. The Board's guidelines are set out in Florida

Administrative Code Rule 64B8-8.001, which provides for the

following range of penalties:

a. For a violation of Section 458.331(1)(nn), Florida

Statutes, second offense: from probation to revocation and an

administrative fine from $5,000.00 to $10,000.00; and

b. For a violation of Section 458.331(1)(m), Florida

Statutes, second offense: from probation to suspension followed

by probation and an administrative fine of from $5,000.00 to

$10,000.00.

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

provides that, in applying the penalty guidelines, the following

aggravating and mitigating circumstances are to be taken into

account:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or public to

injury or potential injury, physical or

otherwise: none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense

or offenses have previously been committed

by the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self-gain

inuring to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, Florida Statutes, of the

provision of controlled substances for

trade, barter or sale, by a licensee. In

such cases, the Board will deviate from the

penalties recommended above and impose

suspension or revocation of licensure;

(h) Any other relevant mitigating

factors.

62. In its Proposed Recommended Order, the Department has

suggested that there are no mitigating circumstances and the

following aggravating circumstances in this case:

Based on the previous serious disciplinary

history of the Respondent, including

multiple violations of the standard of care,

the fact that this is a two count complaint,

and because Respondent has been disciplined

in three previous cases for the same

violation as that at issue here, Section

458.331(1)(m), Florida Statutes, the level

of aggravating factors is high. . . .

This summary of aggravating circumstances is accurate.

63. The Department overlooks, however, that, no patient

was harmed or placed in harm’s way in this case. The Department

also has failed to consider the fact that, even if Dr. Armand is

ultimately found to be in violation of the Office Registration

Statute, such a violation was insignificant, given the fact that

Dr. Armand had intended to close his office and was not

performing any surgery requiring registration. Finally, the

Department has failed to consider the fact that Dr. Armand has

ceased performing Level II and Level III surgery in an office

setting and that he has effectively closed his office practice.

64. The Department has requested that it be recommended

that Dr. Armand’s medical license be revoked. Revocation,

however is too severe a penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Medicine dismissing Count I of the Administrative Complaint;

finding that Lucien Armand, M.C., has violated Section

458.331(1)(m), Florida Statutes (2003), as alleged in Count II

of the Administrative Complaint; imposing a fine of $7,500.00

for the violation alleged in Count II; and, indefinitely

suspending his license to practice medicine in Florida, but

allowing him to continue to practice medicine outside the United

States through his relationship with the United States

Department of State after full disclosure of the Board’s final

order to the United States Department of State. Should a

medical license not be a condition of employment by the United

States Department of State, his license should be revoked.

DONE AND ENTERED this 17th day of June, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of June, 2009.

COPIES FURNISHED:

Diane Kiesling

Assistant General Counsel

Robert A. Milne

Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Sean Ellsworth, Esquire

Ellsworth Law Firm, P.A.

1501 Collins Avenue, Suite 208

Miami Beach, Florida 33139

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in these cases.