03-004433 A. Alexander Jacoby, M.D. vs. Department Of Health, Board Of Medicine Status: Closed Recommended Order on Thursday, April 22, 2004.

Summary: Absent a specific statute or rule, Respondent lacks the authority to allow the withdrawal of applications. Recommend the application for a temporary certificate to practice medicine in an area of critical need should be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A. ALEXANDER JACOBY, M.D., )

)

Petitioner, )

)

vs. ) Case No. 03 - 4433

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Respondent. )

)

RECOMMENDED OR DER

Pursuant to notice, a formal hearing was conducted in this

case on February 19, 2004, at Tallahassee, Florida, before

Michael M. Parrish, an Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberlane Road, Suite 102 - A

Tallahassee, Florida 32312 - 1775

For Respondent: Rosanna Catalano, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether Petitioner’s

application pursuant to Section 4 58.315, Florida Statutes, for a

temporary certificate to practice in an area of critical need

should be granted or denied; and (2) whether Petitioner is

entitled to withdraw his application prior to action by the

Board of Medicine on the merits of the appl ication.

PRELIMINARY STATEMENT

This case arises from Petitioner’s application for a

temporary certificate to practice medicine in communities of

Florida where there is a critical need for physicians. Such

certificates are authorized by Section 458.315, F lorida

Statutes.

During the course of a meeting of the Credentials Committee

of the Board of Medicine, once it became evident that the

Credentials Committee was going to recommend denial of his

application, Petitioner requested that he be allowed to withdr aw

his application prior to any further consideration by the

Credentials Committee or by the Board of Medicine. The request

was denied. Petitioner promptly made a similar written request

addressed to the Board of Medicine. When the Board met to

consider Petitioner’s application, the Board voted to deny the

request to withdraw the application and also voted to deny the

application for certification. Petitioner timely filed a

request for hearing on both denials. In due course the matter

was referred to t he Division of Administrative Hearings.

At the final hearing, Petitioner testified on his own

behalf and also presented the testimony of Ms. Chandra Prine.

Ms. Prine is a programs operations administrator with the

Florida Board of Medicine, Department of Health, who was

stipulated by all parties to be an expert in the license

application process before the Florida Board of Medicine.

Respondent also called Ms. Prine as a witness, but did not call

any additional witnesses. The parties offered one joint

exh ibit, which is a copy of the Board’s entire application file

in this matter.

At the conclusion of the hearing, the parties requested and

were granted, ten days from the filing of the transcript within

which to file their proposed recommended orders. The t ranscript

was filed on March 5, 2004. Shortly thereafter, Respondent

requested an extension of time, and all parties were allowed

until March 29, 2004, to file their proposed recommended orders.

On March 29, 2004, all parties filed Proposed Recommended O rders

containing proposed findings of fact and conclusions of law.

The proposals have been carefully considered during the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a medical doctor, presently licensed to

practice medicine in the State of New York.

2. Petitioner signed a Florida Department of Health Board

of Medicine Application for Temporary Certificate to Practice in

an Area of Critical Need on June 19, 2003. Question number 13

on that application form asked, “Have you ever had any

Medical/professional license revoked, suspended, placed on

probation, received a citation, or other disciplinary action

taken in any state territory or country?” Petitioner answered

“yes” to question number 13.

3. The Notice of Intent to Den y issued by the Florida

Board of Medicine cited as the only reason for denial “[t]he

applicant had action taken against the license by the New York

and the Utah Medical Licensing Boards.”

4. It has since been confirmed that the Utah Division of

Occupation al & Professional Licensing did not take any action

against Petitioner’s medical license in Utah.

5. The New York Department of Health, Monitoring Unit,

Office of Professional Medical Conduct, did take action against

Petitioner’s medical license in New Yo rk. The New York

Department of Health described its action as follows:

Dr. Jacoby currently holds a valid NYS

medical license, and is permitted to

practice in this State, however the

sanctions imposed by the enclosed Order are

still in effect, and have not yet been fully

satisfied. The suspension was lifted in

January 2003, however the three years

probation remains ‘tolled’ at this time , to

be imposed when Dr. Jacoby returns to the

practice of medicine in this State.

[Emphasis added.]

6. The underlyi ng reason for Petitioner’s discipline in

New York is for failing to repay a student loan guaranteed by

the federal government. Petitioner had secured a health

education assistance loan guaranteed by the federal government

for approximately $51,000.00 betw een 1982 and 1983. The loan

came due nine months after Petitioner graduated from medical

school in June or July of 1984. Petitioner did not make any

payments toward the loan for approximately 18 years. In

September of 2002, Petitioner finally settled hi s long past - due

student loan debt.

7. Petitioner requested to withdraw his Application for

Temporary Certificate to Practice in an Area of Critical Need

after the Credentials Committee voted to recommend denial of his

application to the full Board of Medi cine. Petitioner promptly

made a similar written request addressed to the full Board of

Medicine.

8. The full Board of Medicine denied Petitioner’s request

to withdraw his application.

9. The Board of Medicine then considered the merits of

Petitioner’s application and voted to deny the application. The

Board’s action was memorialized in a Notice of Intent to Deny

Licensure by Area of Critical Need, which reads as follows in

pertinent part:

This matter came before the Credentials

Committee of the Flori da Board of Medicine

at a duly - noticed public meeting on

September 13, 2003, in Tampa, Florida and

the full Board on October 3 - 4, 2003, in

Ft. Lauderdale, Florida. The applicant

appeared before the Credentials Committee on

September 13, 2003, and presente d testimony

regarding the application file.

The application file shows:

The applicant had action taken against the

license by the New York and the Utah Medical

Licensing Boards. Additionally, the Board

considered applicant’s Motion to Withdraw

his app lication during the full Board

meeting and voted to deny applicant’s

motion.

The applicant is guilty of violating

Section 458.331(1)(b), Florida Statutes, for

having a license acted upon by another

jurisdiction. Based on the foregoing, the

Board may ref use to certify an applicant for

licensure, or restrict the practice of the

licensee, or impose a penalty, pursuant to

Sections 458.331(2) and 456.072(2), Florida

Statutes.

It is therefore ORDERED that the

application for licensure by area of

critical nee d by DENIED.

10. If a final order is issued denying Petitioner’s

license, the denial will be reported to the Federation of State

Medical Boards, which is a depository of all disciplinary

actions and license application denials by state boards in the

Unit ed States.

11. In recent years, it has been the consistent practice

of the Florida Board of Medicine to deny applications for

licenses to practice medicine if the applicant’s medical license

is on probation in another state. Such practice is not required

by either rule or statute. The Board of Medicine does not make

any effort to advise applicants or prospective applicants of its

consistent practice of denying applications from physicians who

are on probation elsewhere.

12. At the time he filed the subj ect application, as well

as at the time of his appearance before the Credentials

Committee, Petitioner was not aware of the Board of Medicine’s

history of not granting applications submitted by physicians on

probation elsewhere. Had Petitioner been aware of the Board’s

history in that regard, he would not have filed an application.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Section 120.57(1 ), Florida

Statutes.

14. Attention is first addressed to the issue of whether

Petitioner’s requests to withdraw his application should have

been granted. Petitioner’s arguments on this issue are based

primarily on notions of fundamental fairness 1 and on Petitioner’s

interpretation of Wiregrass Ranch v. Saddlebrook Resorts, Inc. ,

645 So. 2d 374 (Fla. 1994). Respondent’s arguments on this

issue are based primarily on notions to the effect that, because

of the compelling state interest in protecting the pub lic from

unfit and incompetent physicians, there is surely some implied

discretionary authority to deny an applicant’s request to

withdraw an application. Respondent’s argument seeks support in

several decisions from other states. Those out - of - state

deci sions seem to be well reasoned, but they also seem to be

inconsistent with Florida appellate court decisions about the

powers of Florida administrative bodies. On the basis of

decisions such as Department of Professional Regulation, Florida

State Board of Medicine v. Marrero, M.D. , 536 So. 2d 1094 (Fla.

1st DCA 1988), and Holmes Regional Medical Center, Inc. v. State

of Florida, Agency for Health Care Administration , 737 So. 2d

608 (Fla. 1st DCA 1999), the undersigned is of the view that, in

the absence of statutory or rule provisions specifically

allowing the withdrawal of applications, Florida administrative

agencies are without authority to allow the withdrawal of

applications. In this regard, attention is especially directed

to the last paragraph of Ho lmes Regional Medical Center , supra .

Accordingly, there was no error in the denial of Petitioner’s

requests to withdraw his application.

15. Addressing attention now to the issue of whether the

subject license application should be granted or denied, it

should first be noted that, on the facts in this case, the Board

of Medicine clearly has the authority and the discretion to deny

the application for the specific reasons stated in the Board’s

notice of intent to deny, to - wit: “The applicant is guilty of

violating Section 458.331(1)(b), Florida Statutes, for having a

license acted upon by another jurisdiction.” 2 But it is equally

clear that there is nothing in the applicable rules or statutes

that mandates denial of the application. The Board of Medicine

can lawfully resolve this matter either way.

16. In deciding which way to exercise its discretion, the

Board’s primary focus should be on which decision will best

serve the interests of the people of this state; especially the

interests of the neediest o f the needy, which comprise the

patient population Petitioner seeks to serve. There have been

no issues raised about Petitioner’s medical skills or about his

ability to safely practice as a physician. Rather, Petitioner

has practiced medicine for almost twenty years, with no

disciplinary action related to the quality of the care he has

provided. Even though Petitioner’s failure to do anything about

his student loans for approximately eighteen years is evidence

of poor judgment in financial matters, there is nothing in that

unfortunate course of conduct to suggest poor judgment in the

treatment of patients. And, although long after it should have

been done, Petitioner has at long last fulfilled his student

loan obligations. All things considered, it appe ars to the

undersigned that the needs of the people of Florida, especially

the needs of the neediest of the needy, would be best served by

granting Petitioner’s application for a temporary certificate to

practice medicine in communities of Florida where th ere is a

critical need for physicians.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be issued in this case

granting Petitioner’s application for a temporary certificate to

practice medi cine in communities of Florida where there is a

critical need for physicians.

DONE AND ENTERED this 22nd day of April, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk o f the

Division of Administrative Hearings

this 22nd day of April, 2004.

ENDNOTES

1/ Part of Petitioner’s “fundamental fairness” argument is based

on the fact that he was ignorant of the Board of Medicine’s long

history of denying applications submitted by physicians who were

on probation in another state. That argument fails for two

reasons. First, the Board’s stated reasons for its intended

denial do not include Petitioner’s probationary st atus in New

York. Second, there is the ancient rule, so well - established as

not to require citation, that “ignorance of the law is no

excuse.”

2/ In reaching this conclusion Petitioner’s arguments based on

the administrative “statute of limitations” f ound at Section

456.073(13), Florida Statutes, have not been overlooked. The

limitations language is limited to “administrative complaints,”

not license application cases. Even if applicable, the

limitations period would not pose a bar to an administrati ve

complaint against a Florida physician based on failure to pay

student loans because, although the default began approximately

eighteen years ago, it was a continuing default and the loans

were still in default until they were settled in September of

200 2.

COPIES FURNISHED:

Rosanna Catalano, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberlane Road, Suite 102 - A

Tallahassee, Fl orida 32312 - 1775

Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Flori da 32399 - 1701

Dr. John O. Agwunobi, 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 A02

Tallahassee, Florida 32399 - 1701

William W . Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

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 O rder. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.