08-005804 James D. Zebranek, Jr., D.O. vs. Board Of Osteopathic Medicine Status: Closed Recommended Order on Tuesday, April 14, 2009.

Summary: Petitioner did not execute a voluntary relinquishment of his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES D. ZEBRANEK, JR., D.O., )

)

Petitioner, )

)

vs. ) Case No. 08-5804

)

BOARD OF OSTEOPATHIC MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on February 4, 2009, in Orlando, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: James D. ZeBranek, Jr., pro se

Post Office Box 915622

Longwood, Florida 32791

For Respondent: Deborah B. Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza-01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner voluntarily

relinquished his license to practice osteopathic medicine.

PRELIMINARY STATEMENT

On September 22, 2003, Respondent, Board of Osteopathic

Medicine (Board), issued a Final Order in Department of Health

v. James D. ZeBranek, Jr., D.O. , Case No. 2002-29377, accepting

a voluntary relinquishment to practice osteopathic medicine,

which was purportedly signed by Petitioner, James D. ZeBranek,

Jr., D.O. (Dr. ZeBranek). Dr. ZeBranek first learned of the

Final Order on September 10, 2006.

Dr. ZeBranek filed a Petition to Rescind Final Order and

Lift Suspension of License. The Board contended that it did not

have jurisdiction to consider the petition and entered an order

denying the petition. Dr. ZeBranek appealed the order, and the

Fifth District Court of Appeal held that the Board did have

jurisdiction to hear the petition.

On November 19, 2008, the Board referred the petition to

the Division of Administrative Hearings for assignment to an

Administrative Law Judge to conduct a final hearing.

By Order dated January 30, 2009, official recognition was

taken of Florida Administrative Code Chapter 64B15 and the

opinion of the Fifth District Court of Appeal filed on August 1,

2008, in James D. ZeBranek, Jr. v. Board of Osteopathic

Medicine , Case No. 5DO7-525. By Order dated January 30, 2009,

official recognition was taken of the Romanian Public Ministry

Ordinance attached to Dr. ZeBranek’s Motion for Judicial

Recognition of Romanian Public Ministry Ordinance of March 25,

2008. By Order dated February 2, 2009, official recognition

was taken of the Final Orders issued by the Board in case

numbers 6933, 198912229, 199013907, 200110904, 200214679, and

200229377. By Order dated February 3, 2009, official

recognition was taken of the 1995 Romanian Law 36 and the 1961

Hague Apostille Convention.

The parties entered into a Joint Pre-hearing Stipulation

and agreed to certain facts contained in Section E of the Joint

Pre-hearing Stipulation. To the extent relevant, those facts

have been incorporated in this Recommended Order.

At the final hearing, Dr. ZeBranek testified in his own

behalf and called James R. LaVigne and Oana Meda Ungureanu as

his witnesses. Petitioner’s Exhibits 1, 3, 5, 8 through 11,

and 13 were admitted in evidence.

At the final hearing, the Board called Richard A. Shoop and

Christy Robinson as its witnesses. The Department presented no

exhibits for admission in evidence.

Administrative Law Judge’s Exhibit 1, which is the

Voluntary Relinquishment of License at issue, was admitted in

evidence.

The Transcript was filed on March 16, 2009. The parties

agreed to file their proposed recommended orders within ten days

of the filing of the Transcript. The parties timely submitted

their Proposed Recommended Orders, which have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Prior to September 22, 2003, Dr. ZeBranek was a

licensed osteopathic physician in Florida, having been issued

license number OS 0005033.

2. The Florida Legislature enacted Chapter 459, Florida

Statutes, and created the Board in order to ensure that every

osteopathic physician practicing in Florida meets minimum

requirements for safe and effective practice. All Florida-

licensed osteopathic physicians are subject to regulation by the

Board.

3. In January 2003, Dr. ZeBranek went to Romania and

stayed there until March 2006. While Dr. ZeBranek was in

Romania, the Department of Health (Department) filed an

Administrative Complaint against him. The attorney representing

the Department was Richard Shoop.

4. Sometime prior to June 11, 2003, Mr. Shoop was in

contact with Dr. ZeBranek. Dr. ZeBranek requested that

Mr. Shoop send him a voluntary relinquishment of license form

for his consideration. Mr. Shoop sent Dr. ZeBranek a document

which had been prepared by the Department staff. The document

was entitled Voluntary Relinquishment of License

(Relinquishment) and contained the style of the case and case

number. The Relinquishment provided that Dr. ZeBranek was

relinquishing his license to practice osteopathic medicine in

Florida and was agreeing to never again apply for a license to

practice osteopathic medicine in Florida. The Relinquishment

further indicated that acceptance by the Board of the

Relinquishment would be considered to be discipline by the

Board. Mr. Shoop sent the Relinquishment to a Florida address.

5. The Relinquishment contained a signature line and an

acknowledgment form to be completed by a notary public. The

acknowledgment form comports with the requirements of

Section 117.05, Florida Statutes (2003). It was the practice of

the Board that the execution of voluntary relinquishments be

executed before a notary public.

6. Sometime after June 11, 2003, and prior to September 6,

2003, Mr. Shoop received the same form that he had sent to

Dr. ZeBranek. The form had been purportedly signed by

Dr. ZeBranek and notarized by a Romanian notary public, Olimpia

Ungureanu. The notary acknowledgment contained the driver’s

license number and passport number of Dr. ZeBranek as the

identifiers used by the notary public. The signature on the

Relinquishment appears to be similar to some other signatures by

Dr. ZeBranek. 1

7. The Relinquishment which was received and which was

purportedly notarized by Ms. Ungureanu was written in English.

There was no Romanian translation attached to the

Relinquishment. No evidence was presented to establish whether

Ms. Ungureanu was fluent in English. No Apostille was attached

to the Relinquishment, certifying the authenticity of the

document.

8. After the Relinquishment was received by Mr. Shoop,

Mr. Shoop had no further communications with Dr. ZeBranek. The

executed Relinquishment was presented to the Board at a meeting

on September 6, 2003. At the time the Relinquishment was

presented to the Board, Dr. ZeBranek’s license was under

suspension as a result of a Final Order entered in DOH Case

No. 2002-14679. The Board accepted the Relinquishment and

entered a Final Order to that effect. The Final Order was filed

on September 19, 2003.

9. Dr. ZeBranek contends that he never signed the

Relinquishment and never sent it to Mr. Shoop. Dr. ZeBranek

feels that his former wife, with whom he is involved in an

acrimonious divorce proceeding, is responsible for sending the

fraudulent Relinquishment to the Board. Dr. ZeBranek’s opinion

is not without some basis. In the past, he has been involved a

situation in which a forged deed, allegedly notarized by the

same notary who purportedly notarized the Relinquishment, was

used by his former wife to transfer the marital home in Florida

to herself. A Romanian public prosecutor refused to prosecute

the notary for forgery, concluding that the notary whose name

appeared on the deed did not notarize the deed.

10. The preponderance of the evidence establishes that

Dr. ZeBranek did not sign the Relinquishment.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

12. As the Petitioner, Dr. ZeBranek seeks to overturn the

Final Order based on the Relinquishment which the Board

received. He must establish by a preponderance of the evidence

that the signature was not his. See Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

13. Subsection 90.902(3), Florida Statutes (2003),

provides that foreign documents may be self-authenticating when

the documents have been executed or attested to in accordance

with the foreign laws where the document was executed or

attested to and is accompanied by a final certification.

14. In the instant case, the Relinquishment was not

notarized in accordance with Romanian law, which requires that

the document be written in Romanian and translated into the

foreign language by a certified translator unless the notary

knows the foreign language in which the document is written.

1995 Romanian Law 36, Chapter 5, Section I, Article 47. The

Relinquishment was not accompanied by a final certification.

15. Dr. ZeBranek has established by a preponderance of the

evidence that he did not sign the Relinquishment relied upon by

the Board in entering a Final Order accepting a voluntary

relinquishment of his license to practice medicine.

Dr. ZeBranek testified that he did not execute the

Relinquishment. He has been involved in a situation in the past

in which the notarization of the notary who purportedly

notarized the Relinquishment was forged. The Relinquishment did

not have an Apostille attached, which would have authenticated

the Relinquishment. The notarization did not comply with

Romanian law.

16. At the conclusion of the final hearing, Dr. ZeBranek

moved for attorney’s fees. He did not state the basis for his

motion, and no attorney was representing Dr. ZeBranek in this

proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order finding that the

Relinquishment was not executed by Dr. ZeBranek; vacating the

Final Order entered on September 22, 2003; and denying the

request for attorney’s fees.

DONE AND ENTERED this 14th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of April, 2009.

ENDNOTE

1/ Dr. ZeBranek submitted several exemplars of his signature in

evidence as Petitioner’s Composite Exhibit 13. Some of the

exemplars were markedly different from each other. Dr. ZeBranek

stated that his signature changed during 2002 to 2004. No

explanation was given for the change in appearances of the

signatures. The signature on the Relinquishment resembles some

of the signatures in the exhibit and is quite different from

some of the signatures in the exhibit.

COPIES FURNISHED :

Deborah B. Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza-01

Tallahassee, Florida 32399

James D. ZeBranek, Jr.

Post Office Box 915622

Longwood, Florida 32791

Pamela King, Executive Director

Board of Osteopathic Medicine

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, 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 Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.