05-000005PL Department Of Health vs. Milton Kaufman, Ot Status: Closed Recommended Order on Tuesday, April 5, 2005.

Summary: The evidence failed to prove Respondent guilty of being unable to practice occupational therapy with reasonable skill and safety to patients due to intoxication, chemical dependency, or any other mental or physical condition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0005PL

)

MILTON KAUFMAN, OT, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

February 18, 2005, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Robert E. Fricke, Esquire

Paula A. Willis, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Robert Rappell, Esquire

Craig M. Rappel, Esquire

Rappell & Rappell

1515 Indian River Boulevard, Suite A210

Vero Beach, Florida 32960 - 7103

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, because of

intoxication, chemical dependency, or any other mental or

physical condition, is unable to practice occupat ional therapy

with reasonable skill and safety to patients.

PRELIMINARY STATEMENT

On September 23, 2004, Petitioner Department of Health

issued an Administrative Complaint against Respondent Milton

Kaufman. Petitioner charged Respondent pursuant to S ection

468.217(1)(t), Florida Statutes, with being "unable to practice

occupational therapy with reasonable skill and safety to

patients by reason of illness or use of alcohol, drugs,

narcotics, chemicals, or any other type of material or as a

result of an y mental or physical condition."

Mr. Kaufman timely requested a formal hearing, and on

January 3, 2005, Petitioner filed the pleadings with the

Division of Administrative Hearings, where an Administrative Law

Judge was assigned to preside in the matter.

The final hearing took place on February 18, 2005, with

both parties present. Petitioner called Dr. Neville C. Marks as

its only witness and offered Petitioner's Exhibits 2 through 5,

which were received in evidence. Mr. Kaufman testified on his

own beh alf and presented the testimony of Dr. Joseph Altieri.

Respondent also moved four exhibits, numbered 1 through 4, into

evidence.

At Petitioner's request, the undersigned took official

recognition of Sections 468.217 and 456.072, Florida Statutes

(2004) .

The final hearing transcript was filed on March 11, 2005.

Proposed Recommended Orders were due on March 21, 2005, and both

parties filed one. Each side subsequently moved to strike the

other's Proposed Recommended Order. Petitioner argues that Mr.

Ka ufman's Proposed Recommended Order contains references to

facts not established by the evidence of record (and it does).

Mr. Kaufman argues that Petitioner's Proposed Recommended Order

was filed one day late (and it was). The parties' submissions

were co nsidered notwithstanding their respective deficiencies.

The motions to strike are denied.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

1. Respondent Milton Kaufman ("Kaufman") is a F lorida -

licensed occupational therapist and, as such, falls under the

regulatory and disciplinary jurisdiction of Petitioner

Department of Health ("Department"). At the time of the final

hearing, Kaufman was not actively practicing occupational

therapy, be cause his license had been suspended pursuant to an

emergency order.

2. On May 27, 2004, Kaufman was seen for the first time by

a psychiatrist named Neville Marks. The appointment had been

made at the instance of the Professionals Resource Network

("PRN "), a program that serves health care practitioners who

have problems arising from substance abuse or dependency. (PRN

had taken an interest in Kaufman after two persons in Kaufman's

office had made complaints to PRN regarding Kaufman's behavior.

Neither complainant testified at the final hearing, however, and

no firsthand evidence was presented concerning the events about

which they had complained. 1 For that mater, no firsthand

evidence of any of Kaufman's work - related conduct was adduced. 2 )

The evalua tion lasted only about 15 minutes, Kaufman having

arrived late for the appointment.

3. During the initial evaluation, Kaufman told Dr. Marks

that he (Kaufman) did not have problems with chemical

dependency. While there is no evidence explaining what Ka ufman

understood the term "chemical dependency" to mean, the

undersigned accepts his denial as credible insofar as, more

likely than not, 3 Kaufman in fact was not relying upon a chemical

to function in daily life or abusing a chemical to the point

that his ability to function in daily life was substantially

impaired or affected. 4 Dr. Marks nevertheless felt that a full

evaluation was needed, and he obtained a urine sample from

Kaufman for testing.

4. Dr. Marks next saw Kaufman on June 1, 2004. During

this second visit, Dr. Marks told Kaufman that his urine had

tested positive for the presence of Valium, hydrocodone (a

painkiller), and marijuana. (The particular test Dr. Marks had

used did not detect the amounts of these substances.) Kaufman

then admi tted to Dr. Marks (and he later testified at hearing)

that he had used these drugs, an undisputed fact which the

undersigned hereby finds.

5. Although Dr. Marks and the Department make much of this

urine test, the result is not as probative of the disput ed

material facts as it might seem, when placed in the proper

factual context. As Kaufman explained to Dr. Marks on June 1,

2004, Kaufman had been taking pain medications to alleviate the

discomfort caused by kidney stones, a condition from which he

had s uffered for about a year before seeing Dr. Marks. The

Department presented no evidence contradicting this credible

explanation or demonstrating that Kaufman had not taken the

hydrocodone pursuant to a licit prescription. 5 Given the state

of the evidentia l record, the undersigned is not clearly

convinced that Kaufman's use of hydrocodone was for any purpose

other than to palliate the effects of a painful physical

condition, or was undertaken except pursuant to a legal

prescription.

6. Concerning the pres ence of Valium in Kaufman's urine

and his admitted use of that drug, the record simply lacks

sufficient evidence on which to base any pertinent findings.

There is, for starters, no clear and convincing evidence as to

what Valium is. While the undersigned knows that Valium is a

commonly prescribed sedative often used to treat anxiety and

insomnia, among other things, his knowledge is not based on

evidence in this record and thus findings to this effect cannot

properly be made. Even if such findings were a uthorized, as

being, for example, matters of common knowledge, the assumed

facts would be consistent with Kaufman's statement to Dr. Marks

that he had been taking two pills to fall asleep at night. In

short, there is no clear and convincing evidence that Kaufman's

use of Valium was illicit or improper.

7. Regarding the use of cannabis, Kaufman testified at

hearing that he smoked pot from time to time —— though not

regularly and never at or before work —— and had done so about one

month before he first saw Dr. Marks. This credible,

uncontradicted testimony is consistent with what Kaufman told

Dr. Marks when confronted by the latter with the urine test

result, and the undersigned accepts it as true. A paucity of

evidence precludes additional findings re garding Kaufman's use

of marijuana.

8. No proof was adduced, for example, as to what marijuana

is or how it affects the user. While these matters might be

commonly known, the undersigned cannot properly make fact

findings about them without evidence of r ecord. Of greater

importance is that no evidence exists as to what effects, if

any, the occasional, off - duty use of marijuana would typically

have on the professional performance of an occupational

therapist; on this the undersigned could only speculate. 6 Owing

to the lack of evidence, therefore, the undersigned is not

clearly convinced that Kaufman's sporadic use of marijuana ever

rendered him unable to practice occupational therapy safely and

skillfully, or might someday do so.

9. Kaufman next saw Dr. Marks on June 3, 2004. During

this visit, Kaufman made several admissions, according to Dr.

Marks. Allegedly, Kaufman told Dr. Marks that he (Kaufman) had

an "addiction problem" and feared discontinuing the medication,

from which he had once attempted t o withdraw, spending 15 hours

in bed feeling bad.

10. Even accepting Kaufman's out - of - court declarations as

truthful statements, the admissions in question are not

especially probative. First, there is no evidence establishing

that Kaufman is competent to diagnose an "addiction problem"

from a clinical or medical perspective; the undersigned must

assume, therefore, that if Kaufman used the term "addiction

problem," he used it in a nontechnical sense. As a nontechnical

term, "addiction problem" is ambig uous —— and Kaufman was not

asked at hearing to explain what he had meant by it. Indeed, it

is not even clear what Kaufman supposedly admitted being

addicted to . In any event, the undersigned does not accept

Kaufman's putative out - of - court statement as cle ar and

convincing proof that Kaufman had a clinically diagnosable

mental or physical condition relating to addiction or

dependency. Rather, as found above, Kaufman was likely able to

perform life's ordinary activities without using a chemical to

make it t hrough the day.

11. Kaufman's alleged statements about suffering from

withdrawal are simply too ambiguous to constitute clear and

convincing proof of relevant facts. It is not clear, for

example, what "medication" Kaufman was supposedly withdrawing

from. Assuming that the medication in question was the

painkiller or the sedative he had been prescribed, the fact that

Kaufman had wanted to stop taking the medication (perhaps

because of addiction fears) but was afraid to do so (perhaps

because unpleasant sy mptoms would reappear) and was having a

hard time quitting would seem neither unique nor alarming, at

least on this record, which is devoid of any evidence

demonstrating that the use of a prescription pain medication

and/or sedative in accordance with a do ctor's orders necessarily

would render a licensee unable to practice occupational therapy

safely and skillfully. Indeed, there is no evidence as to what

effects, if any, the use of hydrocodone and/or Valium —— even

longtime or addictive use —— would have on t he professional

performance of an occupational therapist.

12. Dr. Marks also reported that on June 3, 2004, Kaufman

had told him that his (Kaufman's) wife had said that Kaufman was

"acting weirdly." This alleged statement of Kaufman's wife ——

which Dr. Ma rks relied upon in diagnosing Kaufman —— is hearsay

for which no exception was shown. 7 Because there is no other

competent proof that Kaufman had acted "weirdly," the wife's

purported hearsay statement cannot be accepted as evidence for

the truth of that as sertion.

13. It is undisputed that on June 3, 2004, Kaufman filled

out and signed PRN's "Chemical Dependency Advocacy Contract"

(the "PRN Contract") in which, among other things, he pledged to

abstain from using any mood altering substances without an

ap propriate prescription, agreed to receive ongoing therapy from

Dr. Marks, and consented to submit to random drug tests. This

PRN Contract was never signed by PRN and thus appears not to

have taken effect. Indeed, Kaufman testified at hearing that he

had revoked or rescinded the agreement before it became binding,

although there is no evidence that he did so in writing. In any

event, the fact that Kaufman executed the PRN Contract

constitutes an admission that Kaufman had some sort of problem.

14. The a dmission is an ambiguous one, however, because by

the time Kaufman signed the PRN Contract, he clearly did have a

big problem —— with the Department, which could (and later did)

take away his professional license if he failed to cooperate

with PRN. On the i nstant record, it is as likely that Kaufman

signed the PRN Contract as an expedient means of forestalling

threatened disciplinary action as that he signed the document

acknowledging that he needed help with a chemical dependency

problem. Consequently, the PRN Contract does not clearly

convince the undersigned that Kaufman was, in fact, dependent on

a chemical.

15. After this, Kaufman saw Dr. Marks twice more, on

June 11 and June 22, 2004. During these visits, Kaufman denied

having chemical dependency probl ems. Dr. Marks did not accept

these statements as truthful, but rather concluded that Kaufman

was in "denial." Dr. Marks diagnosed Kaufman as being dependent

on pain medications and marijuana. Dr. Marks conceded at

hearing, however, that Kaufman did not meet the diagnostic

criteria specified in the Diagnostic and Statistical Manual of

Mental Disorders (Fourth Edition) for cannabis dependence. He

did not identify the diagnostic criteria used in their place.

16. Kaufman then stopped seeing Dr. Marks and was referred

to a psychiatrist named Joseph Altieri. Dr. Altieri examined

Kaufman and concluded, as he testified at hearing, that Kaufman

did not meet the diagnostic criteria for chemical dependency.

Instead, according to Dr. Altieri, Kaufman suffered f rom an

adjustment disorder with mixed emotional features ( i.e. anxiety

and depression), 8 and presented with a history of sporadic

marijuana usage, and a history of prescription narcotics use for

various medical conditions.

17. Resolving a conflict in t he evidence, the undersigned

finds that Dr. Altieri's diagnosis is more credible than Dr.

Marks's. Dr. Marks's opinions about Kaufman's condition suffer

in comparison to Dr. Altieri's largely (though not exclusively)

because Dr. Marks relied upon many fac ts for which there is no

competent evidence in the record, e.g. the complaints about

Kaufman that were purportedly made to PRN, and Kaufman's wife's

alleged out - of - court assertion that Kaufman had been acting

"weirdly." 9 In contrast, Dr. Altieri's diagnos is is more

consistent, the undersigned finds, with the persuasive evidence

in the record. 10

18. Accordingly, it is found that the evidence fails

clearly and convincingly to prove that Kaufman has or had a

diagnosable condition known as chemical dependency .

Ultimate Factual Determinations

19. There is no persuasive evidence that Kaufman, as a

matter of historical fact, ever failed to practice occupational

therapy with reasonable skill and safety to patients.

Consequently, the undersigned is not (and c ould not be) clearly

convinced that, at any time he was on duty, Kaufman was actually

unable to practice occupational therapy with reasonable skill

and safety to patients by reason of illness or use of alcohol,

drugs, narcotics, chemicals, or any other typ e of material or as

a result of any mental or physical condition. 11

20. Kaufman suffered, and might continue to suffer, from a

variety of illnesses and/or mental or physical conditions.

These include kidney stones, insomnia, anxiety, and depression.

Ther e is no clear and convincing evidence in the record,

however, that any of these conditions has rendered, or is

reasonably likely to render, Kaufman unable to practice

occupational therapy with reasonable skill and safety to

patients. In this regard, the e vidence is lacking both as to

(a) the effects of these conditions, if any, on Kaufman's

ability to practice occupational therapy and (b) the level of

performance that constitutes "reasonable skill and safety to

patients," which makes it impossible to deter mine whether any of

Kaufman's "disabilities" might ever make him unable to meet the

requisite standard of conduct. 12

21. The evidence is undisputed that Kaufman has used legal

prescription medications as well as marijuana. There is no

clear and convincin g evidence in the record, however, that

Kaufman's use of these substances has rendered, or is reasonably

likely to render, Kaufman unable to practice occupational

therapy with reasonable skill and safety to patients. In this

regard, the evidence is lackin g as to: (a) the likelihood that

Kaufman eventually would be under the influence of any such

substance while on duty 13 ; (b) the effects of these substances,

if any, on Kaufman's ability to practice occupational therapy;

and (c) the level of performance tha t constitutes "reasonable

skill and safety to patients," making it impossible to determine

whether the use of any of these substances might ever make

Kaufman unable to meet the requisite standard of conduct.

22. It is determined that the evidence fails clearly and

convincingly to prove that Kaufman in fact meets the criteria

for discipline set forth in Section 468.217(1)(t), Florida

Statutes. 14

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has personal

and subject matter jurisdiction i n this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

24. Section 468.217(1)(t), Florida Statutes, under which

Kaufman was charged, provides in pertinent part as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action[:]

* * *

(t) Being unable to practice occupational

therapy with reasonable skill and safety to

patients by reason of illness or use of

alcohol, drugs, narcotics, chemicals, or any

other type of material or as a r esult of any

mental or physical condition. In enforcing

this paragraph, the department shall have,

upon probable cause, authority to compel an

occupational therapist or occupational

therapy assistant to submit to a mental or

physical examination by physic ians

designated by the department. The failure

of an occupational therapist or occupational

therapy assistant to submit to such

examination when so directed constitutes an

admission of the allegations against him or

her, upon which a default and final ord er

may be entered without the taking of

testimony or presentation of evidence,

unless the failure was due to circumstances

beyond his or her control. An occupational

therapist or occupational therapy assistant

affected under this paragraph shall at

reason able intervals be afforded an

opportunity to demonstrate that he or she

can resume the competent practice of

occupational therapy with reasonable skill

and safety to patients. In any proceeding

under this paragraph, neither the record of

proceedings nor t he orders entered by the

board shall be used against an occupational

therapist or occupational therapy assistant

in any other proceeding.

25. Because "[n]ot everything that impairs or interferes

with a practitioner's ability renders safe and skillful pra ctice

impossible or even unlikely[,]" a licensee's guilt under Section

468.217(1)(t) is not established unless and until there has been

a finding, "as a fact[,]" of "true inability" on the licensee's

part to practice with reasonable skill and safety to pat ients.

See Lortz v. Department of Health , 700 So. 2d 383, 384 (Fla. 1st

DCA 1997).

26. A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a professional license is penal in

nature. State ex rel. Vining v. Florida Real Es tate Commission ,

281 So. 2d 487, 491 (Fla. 1973). Accordingly, to impose

discipline, the Department must prove the charges against

Kaufman by clear and convincing evidence. Department of Banking

and Finance, Div. of Securities and Investor Protection v.

Osborne Stern & Co. , 670 So. 2d 932, 935 - 36 (Fla. 1996)(citing

Ferris v. Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987)); Nair

v. Department of Business & Professional Regulation , 654 So. 2d

205, 207 (Fla. 1st DCA 1995).

27. Regarding the standard of proo f, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of

Appeal, Fourth District, canvassed the cases to develop a

"workable definition of clear and convincing evidence" and found

that of necessity such a definition would need to co ntain "both

qualitative and quantitative standards." The court held that

clear 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 testimony

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 a firm belief or

conviction, without hesitancy, as to the

truth of the alle gations sought to be

established.

Id. The Florida Supreme Court later adopted the fourth

district's description of the clear and convincing evidence

standard of proof. Inquiry Concerning a Judge No. 93 - 62 , 645

So. 2d 398, 404 (Fla. 1994). The First Dis trict Court of Appeal

also has followed the Slomowitz test, adding the interpretive

comment that "[a]lthough this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Elec. Co rp., Inc. v. Shuler

Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev .

denied , 599 So. 2d 1279 (1992)(citation omitted).

28. The findings of fact set forth hereinabove, which

followed from the application of Section 468.217(1)(t), Florida

Statute s, to the evidence of record as viewed through the above -

stated standard of proof, are dispositive.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a final order

finding Kaufman not guilty of inability to practice occupational

therapy with reasonable skill and safety to patients due to

intoxication, chemical dependency, or any other mental or

physical condition.

DONE AND ENTERED this 5th day of April, 2005, in

Tallahassee, Leon Cou nty, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing ( 850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of April, 2005.

ENDNOTES

1 / To be clear, the complaints to PRN comprised out - of - court

statements for which no exception to the hearsay rule was shown

to apply. If offered for the truth of the matters asserted to

PRN, such complaints would be inadmissible over objection in a

civil action. In this administrative proceeding, evidence of

the substance of such complaints might have been admissible,

nonetheless, to supp lement or explain other evidence, see §

120.57(1)(c), Fla. Stat., but as it happened, no other evidence

of the facts asserted in the complaints was offered, and hence

there was nothing to explain or supplement with hearsay.

Moreover, even if there had bee n such other evidence, there was

no persuasive proof of the substance of the complaints to PRN,

e.g. the testimony of the person(s) to whom the complaints had

been made. At bottom, therefore, to the extent that Dr. Marks

(or any other witness whose knowle dge of the complaints was

secondhand at best) alluded to the substance of the complaints

to PRN, such testimony cannot be relied upon as proof of the

truth of the matters asserted by the non - testifying

complainants.

2 / Thus, it cannot be found, on the in stant record, that Kaufman

ever failed to practice occupational therapy with skill and

safety to patients or behaved at work in such a way as to

suggest that he was impaired, intoxicated, or otherwise under

the influence of any type of material.

3 / At he aring the Department was required to prove inculpatory

facts by clear and convincing evidence. Kaufman, in contrast,

was not obligated to prove any exculpatory facts, much less to

prove them by clear and convincing evidence. Henceforth, unless

otherwise stated, affirmative findings of an exculpatory nature

are supported by at least a preponderance of evidence, though

not necessarily by clear and convincing evidence.

4 / In his testimony and also in his written report dated July

27, 2004, which latter is in evidence as Petitioner's Exhibit 2,

Dr. Marks referred repeatedly to remarks that Kaufman

purportedly had made to him (Dr. Marks) during the course of

treatment. These out - of - court statements of Kaufman are hearsay

if offered for the truth of the matte rs asserted, but —— because

the Department offered the statements against Kaufman —— they are

hearsay that would be admissible over objection in a civil

action as adverse party "admissions" pursuant to § 90.803(18),

Fla. Stat. Alternatively, Kaufman's out - of - court statements to

Dr. Marks might be admissible as statements for purposes of

medical diagnosis or treatment, which fall within another

exception to the hearsay rule. See § 90.803(4), Fla. Stat.

Thus, Dr. Marks's testimony about what Kaufman purportedl y said

to Dr. Marks is competent (though not necessarily persuasive or

clear and convincing) proof in this proceeding of the truth of

Kaufman's purported assertions. It should be added that when

Dr. Marks testified about Kaufman's out - of - court statements, he

did so not as an expert witness (for no special expertise is

required to remember and report what someone was heard to have

said), but rather as a regular fact witness.

5 / Dr. Marks testified that Kaufman had never showed him a

prescription, but he a lso acknowledged that he (Dr. Marks) had

never asked to see one.

6 / The undersigned knows, of course, that marijuana use violates

the criminal law and subjects the user to criminal prosecution.

It should be emphasized, however, that the charges against

Kaufman in this case are not based on allegations of criminal

misconduct or conviction. For the purposes of this proceeding,

therefore, it is largely irrelevant that marijuana use is a

crime. The undersigned says "largely" irrelevant because the

illegali ty of marijuana use does distinguish Kaufman's pot

smoking from his taking of hydrocodone and Valium, which latter,

unlike cannabis, can be used legally for legitimate medical

purposes, as Kaufman in fact used them. Although the Department

made no attempt to prove that marijuana cannot be legally

prescribed as medicine in the State of Florida, the undersigned

believes that this fact is sufficiently well known that no proof

thereof was necessary. Moreover, Kaufman's testimony makes it

clear that his use of marijuana was strictly recreational. At

bottom, then, Kaufman's marijuana use, which was illegal and

non - medicinal, is more troublesome, in the present context, than

his use of the prescription medications.

7 / To be more accurate, the statement of Kauf man's wife is

hearsay (her statement) within hearsay (Kaufman's statement).

While Kaufman's hearsay statements to Dr. Marks are admissible

as admissions (when offered against Kaufman), or perhaps as

statements for purposes of medical diagnosis or treatmen t,

Kaufman's wife's statements are not admissions (because she is

not a party) or diagnostic statements, even when repeated by

Kaufman.

8 / Dr. Altieri explained that Kaufman was having a mood

disturbance (depression) and anxiety disturbance in response t o

a clear psychosocial stressor, namely the suspension of his

license to practice occupational therapy.

9 / While an expert witness can rely upon hearsay in formulating

his opinions, he cannot simply be a conduit for introducing

inadmissible evidence, dir ectly or indirectly, into the record.

See , e.g. , Hastings v. Rigsbee , 875 So. 2d 772, 778 (Fla. 2d

DCA 2004); State v. DuPont , 659 So. 2d 405, 406 n.2 (Fla. 2d DCA

1995), rev. denied , 666 So.2d 144 (Fla. 1995), cert. denied , 517

U.S. 1190 (1996) . When a n expert relies upon hearsay or other

facts that are not established by competent proof at hearing, as

here, his opinions necessarily lose credibility.

10 / Again, it was not Kaufman's burden to present clear and

convincing (or any other kind of) evidence of an accurate

psychiatric diagnosis or anything else. It was, rather, the

Department's burden to prove the alleged condition that

allegedly has rendered Kaufman unable to practice skillfully and

safely. The Department's proof regarding Kaufman's alleged

mental or physical condition was not clear and convincing. The

findings above are intended to help explain why the fact - finder

has found the Department's expert testimony wanting.

11 / If, on any given occasion, Kaufman had attempted to practice

occupati onal therapy while truly unable to do so skillfully and

safely, then, on such occasion, he necessarily would have failed

to practice with reasonable skill and safety, for logically one

cannot do what one is unable to do. (Of course, proof that

Kaufman had failed in a particular instance to practice with

reasonable skill and safety (of which there is none in this

record) would not, without more, establish that Kaufman was

unable to practice skillfully and safely, much less that such

inability (if shown by o ther evidence, which it was not here)

was the result of illness or use of alcohol, drugs, narcotics,

chemicals, or any other type of material or as a result of any

mental or physical condition.) Thus, the absence of proof of

historical failure eliminates the issues of inability and

causation with regard to past on - the - job performance.

12 / The statutory phrase "reasonable skill and safety to

patients" amounts to a standard of conduct against which a

licensee's performance must be measured. In the context of this

offense, the standard of conduct is essential to defining the

requisite severity of disability warranting discipline. This is

because all licensees, at some point, have one or more of the

enumerated disabilities, which, remember, include any illne ss

( e.g. a cold, sore throat, infection, etc.) and any physical

condition ( e.g. headache, allergy, pulled muscle, fatigue,

etc.). It is a matter of common knowledge derived from ordinary

experience that all human beings experience such conditions from

tim e to time, if not on a regular basis. Yet the statute was

obviously not designed to authorize punishment for any licensee

who has, say, the physical condition known as a headache. The

statute applies only when the condition is so severe that, as a

result thereof, the affected licensee is unable to meet the

prescribed standard of conduct, i.e. to perform "with reasonable

skill and safety to patients."

Where the applicable standard of conduct is not explicitly

fixed by statute or rule but rather, as here , depends on broad

concepts ( e.g. "reasonable skill and safety"), the prosecuting

agency must either (a) demonstrate that the licensee's conduct

was so patently unreasonable that persons of common experience

would instantly recognize it as such or (b) addu ce some evidence

from which the trier of fact can conceptualize a standard of

conduct in the form of the action of a "reasonable licensee"

under the same or similar circumstances. See generally , e.g. ,

Purvis v. Department of Professional Regulation, Bd. o f

Veterinary Medicine , 461 So. 2d 134, 137 (Fla. 1st DCA 1984).

Here, the Department did neither. This evidential deficiency

alone is fatal to the Department's case, for unless the fact -

finder knows (via clear and convincing evidence of record) what

reas onably skillful and safe occupational therapy practice

entails, it cannot determine (without speculating or relying on

resources outside the record, either of which would be improper)

whether the licensee was unable to perform at that level.

13 / There is no clear and convincing evidence that Kaufman ever

went to work while under the influence of any substance, and

none suggesting that he likely would. The undersigned concludes

that where intoxication, or being under the influence of a

substance, is the al leged disability —— as opposed to a chronic

diagnosable condition such as alcoholism or cannabis dependency

(which would subsist throughout normal working hours, even when

the licensee is sober) —— there needs to be clear and convincing

evidence of a link bet ween the substance's use and the

licensee's occupational performance. This is based on the

premise that it cannot possibly have been the legislature's

intent to subject to discipline every licensee who, for example,

has a few drinks on the weekend while o ff duty, or who, to take

another example, is given nitrous oxide at the dentist's office.

While such licensees might be temporarily unable to practice

skillfully and safely, unless there is evidence showing that

they likely would attempt to practice in su ch a condition, it

would be absurd to interpret § 468.217(1)(t), Fla. Stat., so as

to reach them. Although there is language in Major v.

Department of Prof. Reg., Bd. of Medicine , 531 So. 2d 411, 413

(Fla. 3d DCA 1988), which could be read in support of s uch an

unlikely interpretation, the undersigned strongly doubts that

the Third DCA meant to put such a gloss on the statute, and at

any rate the Department has not taken so extreme a position in

this case.

14 / While denominating a statement a "finding of fact" or

"conclusion of law" is not determinative of its nature, the

undersigned deliberately has placed this finding here on the

conviction that it is, in reality, an ultimate factual

determination. First, a negative finding ( e.g. "the evidence

fails to prove . . . ") is fundamentally a "finding of fact,"

not a legal conclusion. See Goin v. Commission on Ethics , 658

So. 2d 1131, 1138 (Fla. 1st DCA 1995)("By stating that he was

not persuaded, the hearing officer engaged in the act of

ascribing weight to t he evidence."). Second, the matter of

guilt or innocence —— whether the accused party violated a statute

or rule, as charged —— is a question of ultimate fact to be

decided in the context of each alleged violation. Id; see also ,

e.g. , McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA

1995); Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA

1995). Third, a determination of guilt under § 468.217(1)(t),

Fla. Stat., must be predicated upon a finding, as fact , that the

licensee was truly unable to pract ice with reasonable skill and

safety to patients. See Lortz v. Department of Health , 700 So.

2d 383, 384 (Fla. 1st DCA 1997).

The undersigned is aware that the courts in Lortz , 700 So.

2d at 384, and Major , 531 So. 2d at 413, referred to the guilt -

det ermination of inability to practice with reasonable skill and

safety to patients as a "legal conclusion." While the

undersigned believes, based on the authorities just cited, that

these courts used the wrong label in this regard, the point is

academic her e because, to be very clear, the undersigned has not

found, affirmatively, that Kaufman is guilty or innocent of

being unable to practice skillfully and safely, but rather has

determined, negatively, that the evidence fails clearly and

convincingly to prov e the elements of the charged violation.

This negative finding regarding the insufficiency of the

evidence is undeniably a factual determination based on the

weighing of the evidence. See Goin , supra . And as the First

DCA made clear in Lortz , 700 So. 2d at 384, without a fact

finding of true inability to practice with reasonable skill and

safety, which is an element of the offense, the "legal

conclusion" of the licensee's guilt on the charge of meeting the

criteria prescribed in § 468.217(1)(t) cannot be drawn.

COPIES FURNISHED :

Robert E. Fricke, Esquire

Paula A. Willis, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Robert Rappell, Esquire

Craig M. Rappel, Esquire

Rappell & Rappell

1515 Indian River Boulevard, Suite A210

Vero Beach, Florida 32960 - 7103

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bi n A02

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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 this case.