11-003138PL Department Of Health, Board Of Medicine vs. Joseph Piotrowski, P.A. Status: Closed Recommended Order on Friday, November 4, 2011.

Summary: Petitioner proved by clear and convincing evidence that Respondent was convicted of DUI manslaughter and failed to notify the Board. Recommend revocation.

Case No. 11-3138PL

RECOMMENDED ORDER

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, ) ) ) ) ) ) ) ) ) ) )

BOARD OF MEDICINE, Petitioner, vs. JOSEPH PIOTROWSKI, P.A., Respondent.

On September 13, 2011, a duly-noticed hearing was held in

Tallahassee, Florida, before Lisa Shearer Nelson, an

Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey Frederick Rice, Esquire

Sharmin Hibbert, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399

For Respondent: Joseph Piotrowski, D11823

Cross City Correctional Institution

568 Northeast 225th Street

Cross City, Florida 32628

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent is a

licensed physician's assistant in Florida; whether he committed

the allegations alleged in the Administrative Complaint, and if

so, what penalty should be imposed?

PRELIMINARY STATEMENT

On February 18, 2011, Petitioner, Department of Health

(Petitioner or the Department), filed a two-count Amended

Administrative Complaint against Respondent, Joseph Piotrowski

(Respondent or Mr. Piotrowski), alleging that Respondent violated

found guilty, of a crime in any jurisdiction of a crime which

directly relates to the practice of medicine), and section

456.072(1)(w) (failing to report to the board in writing within

30 days that the licensee has been convicted). Respondent

disputed the allegations in the Amended Administrative Complaint

and requested a hearing pursuant to section 120.57(1), Florida

Statutes. On June 21, 2011, the matter was referred to the

Division of Administrative Hearings for the assignment of an

administrative law judge.

The hearing was scheduled for September 13, 2011, and

proceeded as scheduled. Respondent, who is incarcerated,

participated by telephone. At hearing, the Department presented

no witnesses, but submitted Petitioner's Exhibits 1-3, which were

admitted into evidence. Respondent testified on his own behalf

but submitted no documents.

A one-volume transcript was filed with the Division on

September 28, 2011. Because of concerns with mailing associated

with Respondent's incarceration, the time for submitting post-

hearing submissions was extended to October 13, 2011. Petitioner

filed a Proposed Recommended Order on October 11, 2011, and

Respondent filed a Proposed Recommended Order on October 14,

2011. Both submissions have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of health care professionals, including

physicians assistants, pursuant to section 20.43 and chapters 456

and 458, Florida Statutes.

2. At the time of the events giving rise to the

Administrative Complaint, Respondent was licensed to practice as

a physician's assistant in the State of Florida, having been

issued license number PA9101556.

3. Respondent received his license on January 16, 2001, and

never renewed it. Under normal circumstances, his license would

have expired on January 1, 2004. However, at the time of his

licensure and until his discharge on April 1, 2008, Respondent

was on active duty in the United States Air Force.

4. On April 1, 2001, Respondent was involved in an

automobile accident in which the driver of the other car involved

was killed, along with her unborn child. Respondent was under

the influence of alcohol at the time. As a result of the

accident, on April 19, 2001, he was hospitalized and placed in

military custody. Respondent's clinical privileges with the

United States Air Force were placed in abeyance as of April 20,

2001, and on April 28, 2001, he was reassigned to Fort Stewart,

Georgia, and placed in pre-trial confinement.

5. On May 8, 2001, Respondent was notified that his

clinical privileges in the Air Force were suspended pending the

decision of his court martial, and that the action was taken "in

response to your unprofessional conduct and three consecutive DUI

arrests." The notice also stated that "[t]hese problems could

potentially have adverse effects on patient care."

6. On August 8, 2001, Respondent was convicted by court

martial under Articles 111, 119, 133, and 134 of the Uniform Code

of Military Justice.

7. On October 3, 2001, an Arrest Warrant and Notice to

Appear was filed in the Circuit Court for the Thirteenth Judicial

Circuit in and for Hillsborough County, charging Respondent with

D.U.I. manslaughter in violation of section 316.193(3), Florida

Statutes (2001).

8. On October 17, 2001, Respondent's clinical privileges in

the Air Force were revoked, in response to his court martial

conviction. As with the notice of suspension of his privileges,

the notice of revocation stated:

4. Depending on the outcome of this action,

AFMOA/SGOC may report the matter to

appropriate professional regulatory agencies.

. . . 5. Providers who separate, retire, are

discharge [sic], end employment with the

DoD, or permanently change station within

the DoD while an adverse action review is

taking place may be reported to the National

Practitioner Data Bank and/state licensing

agencies. . . .

9. On January 2, 2002, an information was filed charging

Respondent with two counts: one for D.U.I manslaughter, with

regard to the death of the woman involved in the April 2001

accident; and one for vehicular homicide for the death of her

viable fetus.

10. On or about May 14, 2003, in State of Florida v. Joseph

Frank Piotrowski , Case No. 01-CF-015207 (13th Judicial Circuit),

Respondent was tried and found guilty of both counts charged and

described in paragraph 7. On May 13, 2003, Respondent was

sentenced to serve 15 years for each count, with credit for 376

days jail time served. The court ordered that his sentences run

consecutively, and concurrently with his federal sentence.

11. Respondent was discharged from the military on April 1,

2008.

12. Respondent remains incarcerated, with an anticipated

release date of January 15, 2029.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1), Florida

Statutes (2011).

14. In this case, the Commission seeks to take disciplinary

action against Respondent's license as a physician's assistant.

This disciplinary action by Petitioner is a penal proceeding, and

Petitioner bears the burden of proof to demonstrate the

allegations in the Amended Administrative Complaint by clear and

convincing evidence. Dep't of Banking and Fin. v. Osborne

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

510 So. 2d 292 (Fla. 1987).

15. As reiterated by the Supreme Court of Florida,

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 lacking in confusion as to the

facts in issue. The evidence must be of such

a 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

allegations sought to be established.

In re Henson

, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

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

16. As a preliminary matter, Respondent challenges the

Board of Medicine's authority to take action against him, because

in his view, he does not currently have a license to discipline.

He bases his position on the fact that he never renewed his

license after receiving it, and by its terms, the license would

have expired on January 31, 2004. The Department, on the other

hand, lists him as having a license with the status "military

active."

17. Respondent's position has a superficial appeal: why is

the Department pursuing a license Respondent claims he does not

have and will not be able to use until released from prison 18

years from now? However, Respondent's argument overlooks the

provisions of section 456.024, Florida Statutes, which provides

in pertinent part:

(1) Any member of the Armed Forces of the

United States now or hereafter on active duty

who, at the time of becoming such a member,

was in good standing with any administrative

board of the state, or the department when

there is no board, and was entitled to

practice or engage in his or her profession

in the state shall be kept in good standing

by such administrative board, or the

department when there is no board, without

registering, paying dues or fees, or

performing any other act on his or her part

to be performed, as long as he or she is a

member of the Armed Forces of the United

States on active duty and for a period of 6

months after discharge from active duty as a

member of the Armed Forces of the United

States, provided he or she is not engaged in

his or her licensed profession or vocation in

the private sector for profit. (emphasis

supplied).

18. Technically, this provision should not apply to

Respondent because he was not licensed before he became a member

of the Armed Forces; in his case the opposite is true in that he

was a member of the Armed Forces at the time he received his

license. However, the only plausible explanation for

Respondent's licensure status is the application of this section,

consistent with the public policy of affording some latitude to

those who serve this country through military service. Given

Respondent's active duty status at the time of his licensure,

application of section 456.024 would mean that Respondent's

license would have been renewed automatically on January 31,

2004, with no action on his part. It would have been renewed

again, with no action on his part, on January 31, 2008, as he

remained on active military duty, albeit confined, at that time.

Given the automatic renewal of his license on January 31, 2008,

it would not expire until January 30, 2012.

19. It is puzzling that the Department would continue to

list his license as "military active" in the face of information

that clearly indicates he is no longer in the military and has

not been since August of 2008. However, resolution of that issue

is unnecessary for any decision regarding this case. As is

discussed more fully below, regardless of whether Respondent is

currently licensed or, as he claims, his license has expired, the

Board of Medicine is authorized to discipline his license because

he was licensed at the time of the events giving rise to this

action.

20. The Amended Administrative Complaint charges Respondent

Statutes. Those provisions state in pertinent part:

458.331 Grounds for disciplinary action;

action by the board and department. --

(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.

* * *

456.072 Grounds for discipline; penalties;

enforcement. --

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken: * * *

(w) Failing to report to the board, or the

department if there is no board, in writing

within 30 days after the licensee has been

convicted or found guilty of, or entered a

plea of nolo contendere to, regardless of

adjudication, a crime in any jurisdiction.

Convictions, findings, adjudications, and

pleas entered into prior to the enactment of

this paragraph must be reported in writing to

the board, or department if there is no

board, on or before October 1, 1999. * * * (2) When the board, or the department when

there is no board, finds any person

guilty of

the grounds set forth in subsection (1) or of

any grounds set forth in the applicable

practice act, including conduct constituting

a substantial violation of subsection (1) or

a violation of the applicable practice act

which occurred prior to obtaining a license,

it may enter an order imposing one or more of

the following penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or permanent revocation of a

license. . . .

21. Respondent cites to Haggerty v. Department of Business

and Professional Regulation , 716 So. 2d 873, 874 (Fla. 1st DCA

1998), which held that the Board of Employee Leasing Companies

did not have the authority to discipline a licensee whose license

had expired prior to the filing of the Administrative Complaint

against it. In doing so, however, the court stated:

The language of [section 468.532(2)]

only permits the department to

discipline a licensee--not a former

licensee or future applicant. Most disciplinary statutes phrase

the authority of a professional board in

language similar to the following:

(1) The following acts shall be

grounds for the disciplinary actions

provided for in subsection (2):

[list of prohibited acts]

(2) When the agency finds any

person

guilty of any of the prohibited acts

set forth in subsection (1), the

agency may enter an order imposing

one or more of the following

penalties[.]

(Emphasis added.) This wording permits the

discipline of a former licensee for conduct

committed while the license was active. . . .

22. The language in section 456.072(2) is like that

illustrated by the First District, in that authorizes discipline

against any person committing the enumerated offenses listed in

the statute. Therefore, the Board continues to have the

authority to impose discipline in this case.

23. Count I charges Respondent with violating section

458.331(1)(c). The Department correctly asserts that whether the

conviction is directly related to the practice or the ability to

practice medicine is not limited to the technical ability of

Respondent in his practice setting. As stated by the First

District in Doll v. Department of Health , 969 So. 2d 1103, 1106

(Fla. 1st DCA 2007),

Several cases demonstrate that, although the

statutory definition of a particular

profession does not specifically refer to

acts involved in the crime committed, the

crime may nevertheless relate to the

profession. In Greenwald v. Department of

Professional Regulation , the court affirmed

the revocation of a medical doctor's license

after the doctor was convicted of

solicitation to commit first-degree murder.

501 So. 2d 740 (Fla. 3d DCA 1987). The Fifth

District Court of Appeal has held that

although an accountant's fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of the accountant's license for being

convicted of a crime that directly relates to

the practice of public accounting. Ashe v.

Dep't of Prof'l Regulation, Bd. of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985). We held in Rush v. Department of

Professional Regulation, Board of Podiatry ,

that a conviction for conspiracy to import

marijuana is directly related to the practice

or ability to practice podiatry. 448 So. 2d

26 (Fla. 1st DCA 1984). These cases

demonstrate, in our view, that appellee did

not err by concluding Doll's conviction was

"related to" the practice of chiropractic

medicine or the ability to practice

chiropractic medicine.

24. The same can be said here. Driving while intoxicated

by its nature exhibits a reckless disregard for the lives of

those who may cross one's path. In this instance, the death of a

woman and her unborn child occurred as a result of Respondent's

reckless behavior. The Department has demonstrated a violation

of section 458.331(1)(c) by clear and convincing evidence.

25. Count II of the Amended Administrative Complaint

charges Respondent with failing to report his conviction to the

Board within 30 days. He acknowledged at hearing that he did not

do so, but asserted that he was relying on the representations by

the Air Force that it was notifying licensing agencies. His

reliance is misplaced. The letters related to his clinical

privileges in the Armed Forces, referenced in paragraph 8,

indicated that "[D]epending on the outcome of this action,

AFMOA/SGOC may report the matter to appropriate professional

regulatory agencies." Clearly, this language does not

affirmatively state that in fact the Board office would be

notified. Further, in no way does this language relieve

Respondent of his statutory responsibility to notify the Board

office of his conviction. The Department has proven the

allegations in Count II by clear and convincing evidence.

26. The Board of Medicine has adopted Disciplinary

Guidelines to apprise the public and licensees of the range of

penalties typically imposed for violations of sections 458.331

and 456.072 and the applicable rules. Fla. Admin. Code R. 64B8-

8.001. The undersigned has considered the range of penalties for

a violation of section 458.331(1)(c), as well as the applicable

aggravating and mitigating factors identified in rule 64B8-

8.001(3), including the death of the victim and her unborn child;

the length of time Respondent had been licensed; and the length

of time Respondent will be out of practice by virtue of his

incarceration.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Florida Board of Medicine enter a Final

Order finding that Respondent has violated section 458.331(1)(c)

and section 456.072(1)(w), Florida Statutes (2002). It is

further recommended that Respondent's license be revoked.

DONE AND ENTERED this 4th day of November, 2011, in

Tallahassee, Leon County, Florida.

S

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 4th day of November, 2011.

COPIES FURNISHED: Geoffrey Frederick Rice, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265 Joseph Piotrowski, P.A., D11823

Cross City Correctional Institution

568 Northeast 225th Street

Cross City, Florida 32628

Nicholas W. Romanello, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703 Joy A. Tootle, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

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.