05-003118PL Department Of Health, Board Of Medicine vs. James S. Pendergraft, M.D. Status: Closed Recommended Order on Friday, January 6, 2006.

Summary: The evidence fails to establish the allegations of the Administrative Complaint. Respondent`s guilty plea in a federal criminal case was based on facts not alleged in the Complaint; accordingly, the Complaint should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3118PL

)

JAMES S. PENDERGRAFT, M.D., )

)

Respondent. )

)

RECOMMEN DED ORDER

On October 11, 2005, an administrative hearing in this case

was held in Orlando, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Blake Hunter, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Kenneth J. Metzger, Esquire

Fowler White Boggs Banker P.A.

Post Office Box 11240

Tallahassee, Florida 32302

Kathryn L. Kasprzak, Esquire

Fowler White Boggs Banker, P.A.

37 North Orange Avenue, Suite 500

Orlando, Florida 32801

STATEMENT O F THE ISSUE S

The issue s in the case are whether the allegations of the

Administrative Complaint are correct , and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 31, 2005, the

Department of Health (Petiti oner) alleged that James S.

Pendergraft, M.D. (Respondent) , had violated S ubs ection

458.331(1)(c), Florida Statutes (2004).

The Respondent disputed the allegations and requested a

formal administrative hearing. The Petitioner forwarded the

request for h earing to the Division of Administrative Hearings,

which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

one witness and had E xhibits numbered 1 through 5 and 7 admitted

into evidence. The Respondent pre sented the testimony of one

witness and had E xhibits numbered 1 through 3 admitted into

evidence.

The one - volume Transcript of the hearing was filed on

November 3, 2005. Pursuant to the schedule adopted by the

parties, both filed Proposed Recommended Or ders on December 5,

2005.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a licensed physician, holding Florida license number ME 59702.

The Respondent is board - certified in obstetrics and gynecology.

2. The Respondent h as been licensed in Florida since 1991

and has never been the subject of a previous disciplinary

action.

3. In the mid - 1990s the Respondent owned and operated

several women's health clinics in Florida, where he practiced

maternal/fetal medicine and perf ormed terminations of

pregnancies.

4. In August 1997, the Respondent purchased a building in

Ocala, Florida, for the purpose of opening a women's health

clinic. His intention to open a clinic in Ocala was apparently

controversial, and he was asked by L arry Cretul, the Chairman of

the Marion County Commission, to reconsider the decision.

5. The Respondent became associated with Michael

Spielvogel , a real estate broker, through Mr. Spielvogel 's wife,

who worked for the Respondent. The Respondent discuss ed with

Mr. Spielvogel the possibility that the Ocala property could be

sold to the Marion County government. Mr. Spielvogel engaged in

telephone conversations with Mr. Cretul about the sale of the

property to the county.

6. Mr. Cretul allegedly became concerned about the nature

of the conversations and contacted law enforcement authorities.

An investigation by the Ocala office of the Federal Bureau of

Investigation (FBI) commenced, which included the recording of

the conversations between Mr. Spielvog el and Mr. Cretul,

apparently without Mr. Spielvogel 's knowledge.

7. On one specific occasion, a conversation occurred

between Mr. Spielvogel and Mr. Cretul, after which

Mr. Spielvogel contacted the Tampa office of the FBI and

reported that Mr. Cretul h ad threatened him.

8. Mr. Spielvogel told the FBI that Mr. Cretul had

referenced an Alabama women's clinic that had been bombed on the

date of the alleged conversation, and suggested that the Ocala

clinic would come to an even more spectacular demise.

9 . By subsequently prepared affidavit, Mr. Spielvogel

reported the substance of the conversation including the

allegation that Mr. Cretul had threatened the facility. Also by

affidavit, the Respondent reported that he had been present with

Mr. Spielvogel during the conversation and although not able to

hear Mr. Cretul speak, had observed Mr. Spielvogel react as if

Mr. Cretul had threatened the Ocala clinic.

10. The Ocala clinic eventually opened. The Respondent

sought to employ off - duty law enforcement officers to provide

security for the facility, but the Marion County Sheriff's

Department denied the request. The Respondent sought relief by

filing a federal lawsuit against Marion County and other

parties.

11. During a conversation with the county's attorney as to

why the county had been named in the suit, the Respondent's

counsel reported to the county's attorney the threat allegedly

made by Mr. Cretul. In addition, the Respondent's counsel

produced the affidavits of the Respondent and Spielvogel

r egarding the alleged conversation.

12. The county attorney allegedly learned from Mr. Cretul

that the conversations had been recorded, contacted the FBI, and

eventually convened an unsuccessful settlement conference in

March 1999 that was videotaped by the FBI.

13. In April 1999, the FBI allegedly advised

Mr. Spielvogel that the law enforcement authorities were

aware that the allegations against Mr. Cretul were false.

Mr. Spielvogel advised the Respondent that the FBI had been

investigating the alle gation.

14. In June 2000, both the Respondent and Mr. Spielvogel

were indicted by a grand jury and charged with conspiracy to

commit extortion, mail fraud , and perjury. Mr. Spielvogel was

additionally charged with filing a false affidavit and making

fa lse statements to the FBI.

15. The trial commenced in January 2001. The men were

tried as co - defendants although represented by separate counsel.

A break in the trial occurred from January 12 through

January 19, due to a scheduling conflict.

16. Wh en the break commenced, the Respondent's defense

lawyers received detailed transcriptions of recorded telephone

conversations between Mr. Spielvogel and Mr. Cretul, at which

time it became obvious to the defense team that Mr. Spielvogel

had been untruthful about his conversations with Mr. Cretul,

and that the alleged threat by Mr. Cretul had not occurred.

When confronted with the information by counsel, Mr. Spielvogel

admitted the dishonesty and apologized. The Respondent was

not present at the time the lawyers confronted Mr. Spielvogel,

but entered the room shortly thereafter and observed

Mr. Spielvogel 's apology.

17. The defense lawyers decided that when the trial

resumed, Mr. Spielvogel would make the disclosure of his

dishonesty during his testimo ny, which was scheduled to begin

when the trial resumed. The Respondent was scheduled to testify

after Mr. Spielvogel . When the trial resumed, Mr. Spielvogel

and the Respondent testified as planned.

18. On February 1, 2001, the jury convicted both

Mr. Spielvogel and the Respondent on all counts charged. In

May, the Respondent was sentenced to serve 46 months in prison,

placed on two years of supervised release, and fined $25,000.

Mr. Spielvogel was sentenced to 41 months in prison and three

years of supervised release.

19. The Respondent entered prison and began serving his

sentence in July 2001.

20. The convictions were appealed to the United States

Court of Appeals for the Eleventh Circuit. Oral arguments

occurred on February 27, 2001. The R espondent was ordered

released from prison on February 28, 2001.

21. By written decision issued on July 16, 2001, the

Respondent's conviction was vacated, and the case was remanded

for retrial on the sole issue of whether the Respondent's

affidavit rega rding his observations during the

Spielvogel /Cretul threat conversation was false and constituted

conspiracy to commit perjury.

22. The c ourt found that the Respondent's threat to file

litigation against Marion County, "even if made in bad faith and

sup ported by false affidavits" failed to violate the statute

(the "Hobbs Act") under which the Respondent had been charged as

to the indictment for conspiracy to commit extortion or

attempted extortion.

23. The c ourt further found that the "mailing of

liti gation documents, even perjurious ones, did not violate the

mail fraud statute" under which the Respondent and

Mr. Spielvogel had been charged.

24. As to the actual affidavits, the government had

charged that the Respondent and Spielvogel had agreed to supply

perjured affidavits as evidence in the legal action against

Marion County. The c ourt, reviewing the evidence as required in

the light most favorable to the government's position, stated

that the government offered circumstantial evidence upon which a

jury could infer such an agreement. The c ourt specifically

stated as follows:

During the Government's case, it introduced

the affidavits of Spielvogel and

Pendergraft. These statements indicated

that Cretul threatened Spielvogel on

January 29 and that Pendergraft observed

Spielvogel receiving these threats. The

Government offered evidence that Cretul did

not, in fact, make the threats on

January 29. Cretul testified that he never

made the threat asserted by Spielvogel , and,

on the FBI tapes of Cretul 's conversations

with Spielvogel , Cretul never made the

threats that Spielvogel asserted in his

affidavit. This demonstrated that

Spielvogel 's statements were false.

Furthermore, Spielvogel was at home when he

spoke with Cretul on January 29. The

Govern ment and Pendergraft stipulated that

Pendergraft was not at Spielvogel 's home

during Spielvogel 's conversation with Cretul

on January 29. This was evidence that

Pendergraft did not observe what he said he

observed. From this circumstantial

evidence, the jury could infer that

Pendergraft and Spielvogel agreed to

fabricate the threats and Pendergraft's

observation of the threats.

25. Because the original perjury conviction was included

within the convictions for extortion and mail fraud (both of

which wer e vacated) , the c ourt remanded the case and directed

that the perjury charge should be retried against the

Respondent. In October 2002, the U.S. Attorney initiated

re - prosecution of the perjury case.

26. In March 2004, after additional litigation incl uding

another appeal to the United States Court of Appeal for the

Eleventh Circuit, the trial judge directed the parties to

resolve the case. Discussions between all parties eventually

resulted in the Respondent's entry on June 28, 2004, of a guilty

plea to one count of "Accessory After the Fact, " and he was

adjudicated guilty by the trial court.

27. The facts upon which the Respondent entered the plea

and was convicted were set forth in a document titled "Factual

Basis" which provides as follows:

James S cott Pendergraft is a medical doctor

who owns and operates several women's

reproductive health facilities in the State

of Florida, including one in Ocala. In

February 1998, Michael Spielvogel, a

business associate of Pendergraft,

intentionally made false reports to agents

of the Federal Bureau of Investigation

(FBI) , regarding alleged threats of death

and destruction by the n Commissioner Larry

Cretul. Specifically, Spielvogel falsely

reported to the FBI that Commissioner Cretul

had threatened that if Dr. Pendergraft

opened a medical facility in Ocala, Florida,

a bombing that had recently occurred at a

medical facility in Birmingham, Alabama,

"would be nothing compared to what would

happen in Ocala." At the time Spielvogel

made the false reports to the FBI , he

(Spielvogel) knew that Cretul had never made

this statement.

Spielvogel was subsequently indicted and

charged with making a false report to the

FBI, in violation of 18 U.S.C. § 1001, and

his trial commenced on January 2, 2001, in

Ocala, Florida. Whi le the trial was in

progress, Spielvogel informed Pendergraft

that Cretul had never made the alleged

threatening statement, and that Spielvogel

had thus made a false report to the FBI.

Spielvogel , however, continued to relay to

Dr. Pendergraft that he fel t threatened by

the communications with Cretul, and that

Spielvogel staged a telephone call in front

of Pendergraft where he repeated the threat

into the telephone to convince Pendergraft

that Cretul had just made the threat.

Before the commencement of th e trial,

Pendergraft had procured the professional

services of William Caddy, Ph.D., a clinical

psychologist, to assist in Spielvogel 's

defense. Dr. Caddy was prepared to testify,

and Pendergraft was aware of the substance

of the prospective testimony of Dr. Caddy,

by having reviewed Dr. Caddy's report.

Pendergraft knew that Dr. Caddy's report did

not contain the truthful disclosure

referenced above, and, in fact, reported

that Spielvogel believed the false

statements to be true. Pendergraft took the

aff irmative step of concealing the crime

committed by Spielvogel by continuing to

procure and pay for the services of

Dr. Caddy, which included providing

contemplated testimony at the trial on

behalf of Mr. Spielvogel in order to have

him exonerated and avoid punishment.

28. Based upon the conviction of Accessory After the Fact,

the Respondent was sentenced to time served, and to pay a total

of $300 in assessments and fines.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction o ver the parties to and subject matter of this

proceeding. § 120.57(1), Fla . Stat . (200 4 ).

30. The Petitioner has the burden of establishing the

allegations of the Administrative Complaint by clear and

convincing evidence. Department of Banking and Fina nce v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996) ; Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Clear and convincing

evidence is that which is credible, precise, explicit , and

lacking 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 of conviction, without hesitancy, as to the

truth of the allegations. Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

31. The Administrative Complaint fil ed in this case

alleges that the Respondent violated S ubs ection 458.331(1)(c),

Florida Statutes (2004), which provides as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(c) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of medicine or to the ability to

practice medicine.

32. S ubs ection 4 58.305(3), Florida Statutes (2004) ,

defines the "practice of medicine" to mean "the diagnosis,

treatment, operation, or prescription for any human disease,

pain, injury, deformity, or other physical or mental condition."

33. Disciplinary statutes are pena l in nature and must be

strictly interpreted against the authorization of discipline and

in favor of the person sought to be penalized. Munch v.

Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

DCA 1992).

34. The Administrative Complain t in relevant part sets

forth the following allegations:

On or about May 28, 2004, Respondent was

charged by a one count superceding

information in case number 5:00 - or - 21(S1) -

Oc - 32GRJ in the United States District

Court, Middle District of Florida, Ocala

D ivision, with one count of knowingly and

willfully assisting an offender in order to

hinder and prevent the offender's trial and

punishment, in violation of Title 18, United

States Code, Section 3, in that Respondent

knew and failed to report to the Federa l

Bureau of Investigation (FBI) that the

statements made by his business partner

Michael Spielvogel to the FBI were false.

The facts underlying the charges filed

against the Respondent were that Respondent

knew that his business partner had made

stateme nts to the FBI during an

investigation that were false. The

statements by Respondent's business partner

were made in an attempt to conspire to

commit extortion and these statements

damaged the reputation of a government

official by falsely implying that h e

contemplated the use of actual or implicit

threats of or acts of violence and other

criminal means to cause harm to a person

and/or property.

On or about June 28, 2004, Respondent

entered a plea of guilty in case number

5:00 - or - 21(S1) - Oc - 32GRJ in the United States

District Court, Middle District of Florida,

Ocala Division, to one count of Accessory

After the Fact.

35. Contrary to the Administrative Complaint, neither the

superceding information nor the factual basis upon which the

Respondent was conv icted reference s any failure by the

Respondent to report to the FBI knowledge of the falsity of

Spielvogel 's claim regarding the alleged threat from Mr. Cretul.

36. Disciplinary action may be based only on the offenses

specifically alleged in the Admini strative Complaint. Trevisani

v. Department of Health , 908 So. 2d 1108, (Fla. 1st DCA 2005);

Ghani v. Department of Health , 714 So. 2d 1113 (Fla. 1st DCA

1998); Sternberg v. Department of Professional Regulation, Bd.

of Medical Examiners , 465 So. 2d 1324, (Fla. 1st DCA 1985).

37. In this case, the factual basis for the guilty plea

set forth in the Administrative Complaint is unsupported by

evidence. The facts underlying the charge to which the

Respondent ultimately entered a guilty plea established onl y

that once the Respondent became aware that the Spielvogel claim

was false, the Respondent failed to inform a clinical

psychologist whom the Respondent had obtained to testify on

behalf of Mr. Spielvogel .

38. The question of an alleged perjury, which w as the

subject of the remand, was not ultimately addressed. The

Respondent testified that he was unaware that the Spielvogel 's

reported threat was false prior to the Spielvogel /Cretul

conversation transcript information being provided to his

defense lawye rs during the trial break. The Eleventh Circuit

Court decision states that the threat allegedly occurred during

a conversation on January 29 between Mr. Spielvogel and

Mr. Cretul, that Mr. Spielvogel was at home at the time of the

conversation, and that t he Respondent had stipulated that he was

not at Spielvogel 's home during the conversation, hence the

issue was remanded for the retrial which did not occur.

39. Assuming that the Administrative Complaint had

accurately alleged the facts to which the Res pondent had entered

the plea, the issue then becomes whether the crime committed is

related to the practice of medicine or to the ability to

practice medicine, a question of law and fact to be addressed in

an evidentiary hearing. Spuza v. Department of He alth , 838 So.

2d 676 (Fla. 2d. DCA 2003) .

40. As to whether the Respondent entered a guilty plea to

a crime directly related to the practice of medicine or to the

ability to practice medicine, the Administrative Complaint

states as follows:

The qualiti es that are essential to the

practice of medicine include respect for

human life, respect for property and

reputations of persons, honesty, integrity,

judgment and a willingness to abide by the

laws of the State of Florida. Respondent

breached the trust a nd confidence the

citizenry and the Legislature of Florida

entrusted in him when he knowingly and

willfully failed to disclose that his

business partner made false statements to

the FBI. Respondent's conviction of

Accessory After the Fact demonstrates tha t

Respondent lacks these essential qualities

as well as a disregard for his role as a

physician and for the public's trust in him.

Thus the crime for which the Respondent was

found guilty and convicted is a crime

related to the practice of medicine or to

his ability to practice medicine.

41. The allegation clearly references facts that were not

established during the hearing. The factual basis underlying

the Respondent's conviction does not establish the Respondent

"knowingly and willfully failed to d isclose that his business

partner made false statements to the FBI."

42. In support of the assertion that the Respondent's

conviction was of a crime related to the practice of medicine or

to his ability to practice medicine, the Petitioner relies on a

c ollection of previous disciplinary proceedings wherein the

Petitioner has broadly interpreted the parameters of medical

practice to include a range of personal characteristics.

43. Statutes imposing a penalty must always be construed

strictly in favor o f the one against whom the penalty is imposed

and are never to be extended by construction. Liberal

construction to effectuate a public purpose cannot prevail over

a principle of law as firmly established as that regarding

statutory penalties. Holmberg v . Department of Natural

Resources , 503 So. 2d 944 (Fla. 1st DCA 1987).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Petitioner enter a f inal o rder

DISMISSING the Administrative Complaint filed against James S.

Pendergraft, M.D.

DONE AND ENTER ED this 6 th day of January , 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

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 6 th day of January , 2006 .

COPIES FURNISH ED :

J. Blake Hunter, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

Kenneth J. Metzger, Esquire

Fowler White Boggs Banker P.A.

Post Office Box 11240

Tallahassee, Florida 32302

Kathryn L. Kasprzak, Esquire

Fowler White Boggs Banker, P.A.

37 North Orange Avenue, Suite 500

Orlando, Florida 32801

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

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 Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.