12-001575PL Department Of Health, Board Of Medicine vs. Christopher Carter, M.D. Status: Closed Recommended Order on Monday, November 26, 2012.

Summary: Respondent pled guilty to a crime related to the practice or ability to practice medicine, i.e., possession of child pornography, a federal felony.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1575PL

)

CHRISTOPHER CARTER, M.D. , )

)

Respondent . )

)

RECOMMENDED OR DER

On October 9, 2012, a duly - noticed hearing was conducted

pursuant to section 120.57(1), Florida Statutes (2012), in

Tallahassee, Florida, before Administrative Law Judge Lisa

Shearer Nelson of the Division of Administrative Hearings.

APPEARANCES

F or Petitioner: Laura L. Glenn, Esquire

John B. Fricke, Jr., Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Christopher Carter, M.D., pro se

Inmate No. 20674 - 017

Federal Correctional Institution

Englewood

9595 West Quincy Avenue

Littleton, Colorado 801 2 3

STATEMENT OF THE ISSUE

The issue to be resolved is whether Respondent,

Dr. Christopher Carter, M. D. (ÐRespondentÑ or ÐDr. CarterÑ), was

convicted of, pled guilty , or pled nolo contendere to a crime

directly related to the practice or the ability to practice

medicine, in violation of section 456.072(1)(c), Florida

Statutes (2009), and if so, what penal ty should be imposed?

PRELIMINARY STATEMENT

On February 20, 2012, the Department of Health (Ðthe

DepartmentÑ or ÐPetitionerÑ) filed a one - count Amended

Administrative Complaint charging Respondent with having pleaded

guilty to one count of possession of c hild pornography in

violation of 18 U.S.C. §§ 2252(a)(5)(b) and 2252A(b)(2).

Respondent disputed the allegations in the Amended

Administrative Complaint and requested a hearing pursuant to

section 120.57(1), Florida Statutes. On May 1, 2012, the case

was referred to the Division of Administrative Hearings for

assignment of administrative law judge.

The case was originally notice d for hearing to be commenced

July 24, 2012. At the request of Petitioner, the case was

continued until October 24, 2012, and pr oceeded as scheduled.

Respondent, who is incarcerated, participated telephonically.

The Department requested and received Official Recognition of

Florida Administrative Code Rule 64B8 - 8.001. On September 17,

2012, Petitioner filed a Motion to Amend the Amended

Administrative Complaint, in order to clarify and narrow the

factual allegations; no additional factual allegations or

charges were sought to be added. The Motion was granted by

Order dated October 2, 2012, and the case proceeded on the

Second Am ended Administrative Complaint.

At hearing, Petitioner presented no live witnesses.

PetitionerÓs Exhibits 1, and 4 through 8 were admitted into

evidence. Respondent testified on his own behalf, and sought to

introduce three exhibits. RespondentÓs Exhibi t 1 , however, was

the results of a polygraph test apparently taken by Respondent.

Consistent with the holding in Lieberman v. Dep Ó t of Prof Ó l

Reg . , 573 So. 2d 349, 351 - 52 (Fla. 5th DCA 1990), this exhibit

was not admitted into evidence and the undersigned has not

reviewed it. The other two proposed exhibits submitted by

Respondent were also rejected.

A one - volume Transcript of the proceedings was filed with

the Division of Administrative Hearings on October 18, 2012.

Respondent filed his Proposed Recomme nded Order on October 29,

2012, and Petitioner filed its Proposed Recommended Order on

November 1, 2012. Both submissions have been carefully

considered in the preparation of this Recommended Order. All

references to Florida Statutes are to the 2009 codi fication

unless otherwise indicated.

FINDING S OF FACT

1. The Department is the state agency charged with the

licensing and regulation of health care professionals pursuant

to section 20.43 and chapter 456, Florida Statutes. The Board

of Medicine is the p rofessional licensing board charged with

final agency action with respect to discipline against medical

doctors pursuant to chapter 458, Florida Statutes.

2. At all times material to the allegations in the Second

Amended Administrative Complaint, Responde nt was licensed as a

physician by the State of Florida, having been issued license

number ME 82836.

3. On April 19, 2010, the United States Attorney for the

Northern District of Florida filed a one - count Information

against Respondent, alleging that Res pondent knowingly possessed

material containing images of child pornography as defined in

18 U.S.C. £ 2256(8)(A), namely, Ðvisual depictions of sexually

explicit conduct, the production of which involved the use of

minors engaging in sexually explicit con duct, having been

mailed, shipped and transported using any means . . .Ñ in

violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2).

The case was filed in the Gainesville Division of the United

States District Court, Northern District of Florida, and

do cketed as Case No. 1:10CR19 MMP/AK.

4. On May 14, 2012, a Plea and Cooperation Agreement

(ÐPlea AgreementÑ) was filed wherein Respondent agreed to plead

guilty to the charge recited in the Information. He also agreed

to cooperate Ðfully and truthfully wi th the United States

Attorney and his designated representatives . . . including

providing complete and truthful debriefings and testimony at

grand jury, trial, and as otherwise requested, involving any

matter under investigation.Ñ

5. As part of the Plea Agreement, Respondent was advised

that he would be required to register as a Sex Offender and keep

the registration current in the state of his residence, the

location of his employment, and if a student, the location of

his school.

6. The Plea Agreement also specifies that, subject to

provisions not at issue in this proceeding, any statements,

agreements or other evidence provided by Respondent may be used

against him in the federal proceeding or any other action.

7. T he Statement of Facts filed with the Plea Agreement

stated the following:

This case is the result of a Peer - to -

Peer file sharing investigation initiated by

the North Florida Internet Crimes Against

Children (ICAC) Task Force.

On September 11, 2009, special software

was utilized to locate co mputers sharing

images of child pornography utilizing the

Gnutella network. One computer offering to

participate in the distribution of child

pornography had an Internet Protocol (IP)

address which corresponded with an Internet

Service Provider (ISP) in G ainesville,

Florida. A publicly available listing of

the files offered for distribution by the

computer at the IP address was reviewed.

They included sexually explicit file names

describing sexual acts with children. In

addition to the file names, the u nique SHA

values were reviewed and confirmed that the

files had previously been identified as

depicting child pornography. . . . The files

identified by their SHA values were examined

and observed to be sexually explicit images

of minor children engaged in sexual acts. A

check of the IP address offering to

distribute child pornography showed the same

IP had been recorded one hundred and forty -

two times between March 5, 2009 , and

October 28, 2009, offering different child

pornography files for distribution.

An Internet search for the origin of

the IP address found it to be issued to a

cable modem subscriber with Bellsouth

Internet of Atlanta, Georgia. A subpoena

sent to them revealed that the IP had been

assigned to an account in Gainesville,

Florida. The account contained information

identifying the account holder at a

residence located at 5818 NW 45th Drive

Gainesville, FL 32653. The account holder

was identified as CHRISTOPHER SCOTT CARTER.

A federal search warrant was obtained

for the CARTER reside nce. Six known video

files depicting child pornography were

included in the search warrant and

identified by their file titles and SHA hash

values.

8. The names of the files are included in the Statement of

Facts filed in conjunction with the Plea A greement and need not

be repeated here. Suffice it to say that the file titles

indicate that the images are of children from one to ten years

old portrayed in sexual activity , and some included violent

imagery.

9. The Statement of Facts also indicated t hat c omputer

equipment seized from RespondentÓs residence included a Compac

Presario desktop computer belonging to Respondent, upon which

the file sharing software was confirmed. The forensic examiner

was able to locate the SHA values and associated file paths

corresponding to the six videos described in the search warrant.

10. On July 21, 2010, an Amended Judgment was filed,

accepting RespondentÓs guilty plea and adjudicating him of one

count of possession of child pornography. Respondent was

sentenced to prison for a period of 48 months, followed by

supervised release for life.

11. The sentence requires that Respondent register as a

sex offender with the appropriate agency in the state where he

lives, works, or is a student. Standard Conditions of

Sup ervision include the following:

7. the defendant shall refrain from

excessive use of alcohol and shall not

purchase, possess, use, distribute , or

administer any controlled substance or any

paraphernalia related to any controlled

substances, except a presc ribed by a

physician:

* * *

9. the defendant shall not associate with

any persons engaged in criminal activity and

shall not associate with any person

convicted of a felony unless granted

permission to do so by the probation

officer.

* * *

13. as d irected by the probation officer,

the defendant shall notify third parties of

risks that may be occasioned by the

defendant's criminal record or personal

history or characteristics and shall permit

the probation officer to make such

notifications and to co nfirm the defendant's

compliance with such notification

requirement.

12. The Additional Conditions of Supervised Release

imposed by t he court include the following:

The defendant shall have no unsupervised

contact with minor children, except the

defenda nt's own child.

The defendant shall not possess any

pornographic material, adult or child.

The defendant shall relinquish his pilot's

license, nor shall he obtain a new pilot's

license without the Court's approval.

The defendant shall notify any employe r of

the offense of conviction.

The defendant shall not occupy a vocation or

volunteer in a position in which he had

direct contact with minor children.

* * *

The defendant shall participate in a program

of mental health counseling to include sex

offend er counseling.

The defendant shall register with the state

sex offender registration agency in any

state where the defendant resides, is

employed, carries a vocation, or is a

student, as directed by the supervising

probation officer. The probation offi c e r

will provide state officials with any and

all information required by the state sex

offender registration agency and may direct

the defendant to report to that agency

personally for additional processing such as

photographing and fingerprinting.

* * *

The defendant shall not be in the presence

of minors, nor have any contact in any form,

direct or indirect, including but not

limited to, personally, by computer,

telephone, letter or through another person,

with children under the age of eighteen,

withou t the approval of the probation

officer. Any contact must be reported

immediately to the probation officer.

13. Respondent reported his plea , as required , to the

Board of Medicine. The letter written by Dr. Carter is lengthy

and need not be repeated in its entirety. However, Dr. Carter's

remarks include the following:

I downloaded these horrendous images

thinking that my viewing them was invisible

and innocuous. However, I now appreciate a

larger perspective: that after these

perverse images are p roduced, they circulate

in hy p erspace indefinitely, so that the

victimization is twofold. Following their

original exploitation, the victims of child

pornography are haunted by the knowledge

that these pictures will persist on the

internet, to be download ed and seen by

anyone, indefinitely. While our ability to

remove the images is limited, we do have the

ability to condemn them, to reject viewing

them, and to refuse to possess them. This I

failed to do. With an appreciation of the

coercion involved in producing these

horrible images, and the emotional injury of

both the production and of having the images

circulating indefinitely, I regret having

viewed child pornography and I more deeply

affirm my decision to avoid this revolting

material.

14. Respo ndent asserted, both in his letter and in his

hearing, that he should be able to continue practicing medicine

for three reasons: 1) that no activity associated with child

pornography occurred at work or was associated in any way with

medical practice; 2) that the offense was limited to viewing

internet images in his home, and no Ð hands - on Ñ offense or

production or distribution of material was alleged or occurred;

and 3) his crime does not endanger patient safety because he

does not treat children. The und ersigned notes that Respondent

indicates in his letter that Ð some time before a search warrant

was served at my residence, I had independently discontinued my

use of child pornography and had deleted all such files from my

computer. Ñ The last activity inv olving Dr. CarterÓs IP address

was one week before the issuance of the search warrant.

15. However, as stated by the Department Ó s expert witness,

Dr. Francisco Calimano , the qualities essential to the practice

of medicine include sound judgment and resp ect for the welfare

of others. Respondent Ó s behavior in possessing and viewing

child pornography show s total disregard for one of the most

vulnerable segments of our population, and represents the

antithesis of what a physician should be.

16 . Dr. Calima no Ó s view of the level of poor judgment

exhibited did not change with the knowledge that Dr. Carter had

decided to delete the pornographic files of his own accord. The

undersigned shares his view.

17. In addition to the serious judgment lapse and breach

of public trust involved in Respondent Ó s behavior, the practical

ramifications of the terms of Respondent Ó s supervised release

make the practice of medicine problematic if not impossible .

One of those limitations is that Respondent have no contact with

c hildren under 18 without a probation officer Ó s approval. While

Dr. Carter indicates that his practice is limited to adults,

that factor does not erase the presence of children from the

practice setting. As stated by Dr. Calimano, children are

brought int o hospitals, waiting rooms, intensive care units, and

similar practice settings , as patients, visitors, or dependants

of patients or visitors . The same can be said of convicted

felons. Likewise, the ability to practice without contact with

controlled sub stances is virtually non - existent.

18. In addition, upon his release from prison, Respondent

is required to register as a sex offender wherever he lives or

works. This status undermines the trust a member of the general

public would have in the judgment and integrity of the care

giver.

19. Respondent Ó s conviction has effectively imposed

serious practical impediments related to his continued ability

to continue practicing medicine, without risking a violation of

the terms of his lifetime supervised rele ase.

20. It is found that the crime of possession of child

pornography is related to the practice or the ability to

practice medicine.

21. Respondent testified that prior to his arrest, he had

made the conscious decision to stop viewing child pornograp hy

and had deleted the files from his computer. He also testified

that he sought treatment and continues to do so. These factors,

however, do not go to the actual commission of the offensive

acts .

CONCLUSIONS OF LAW

22 . The Division of Administrative He arings has

jurisdiction of the subject matter and the parties to this

action pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

23. This is a proceeding whereby the Department seeks to

impose discipline against Respondent Ó s license to practice

medicine. The Department has the burden to prove the

allegations in the Second Amended Administrative Complaint by

clear and convincing evidence. Dep't of Banking & Fin. v.

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

Turlington , 595 So. 2d 292 (Fla. 1987). As stated 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 an d lacking in

confusion as to the facts at 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 He nson , 913 So. 2d 579, 590 (Fla. 2005) (quoting

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

This burden of proof may be met where the evidence is in

conflict; however, Ð it seems to preclude evidence that is

ambiguous. Ñ Westinghouse Elec . Corp. v. Shuler Bros., Inc. ,

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

24. The Second Amended Administrative Complaint charges

Respondent with violating section 456.072(1)(c). Section

456.072 provides in pertinent part:

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:

* * *

(c) Being convicted or found guilty of, or

entering a plea of guilty or nolo contendere

to, r egardless of adjudication, a crime in

any jurisdiction which related to the

practice of, or the ability to practice, a

licensee's profession.

25. Among the penalties authorized for a violation of

section 456.072(1)(c) are suspension and permanent revoca tion of

a license. § 456.072(2)(b), Fla. Stat.

26. Whether or not a particular crime is related to a

profession is not limited to its connection to the technical

ability to practice the profession. As stated by the First

District:

Several cases demonst rate 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 co urt 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 Ó s fraudulen t acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of the accountant Ó s license for being

convicted of a crime that directly relates

to the practice of public accounting. Ashe

v. Dep Ó t of Prof Ó 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 a bility 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 Ð related to Ñ the practice of

chiropractic medicine or the ability to

practice chiropractic medicine.

Doll v. Dep't of Health , 969 So. 2d 1103, 1006 (Fla. 1st DCA

2007).

2 7 . The same can be said with respect to the crime for

which Respondent was convicted. Greenwald also highlights the

fallacy of Respondent Ó s argument that his crime of viewi ng child

pornography is not likely to transition into a Ð contact Ñ crime.

Greenwald was convicted of solicitation to commit first - degree

murder: the intended victim being his ex - wife. One could say

that because his actions stemmed from a domestic situati on (as

does Respondent Ó s in part), that once the ex - wife was removed

from the equation, the threat was gone. Both Greenwald and

Respondent missed the point. It is the lack of respect for

human life and the exploitation of others for personal

gain -- whe ther it be for financial gain, personal pleasure ,

revenge , or something else entirely -- that demonstrates the

impaired judgment of the licensee and reflects the antithesis of

what is required as a licensee to practice medicine.

2 8 . Given the lack of jud gment and the practical

limitations on the practice of medicine required for Respondent

to be in compliance with his supervised release upon the

completion of his prison term , the Department has proven a

violation of section 456.072(1)(c) by clear convinci ng evidence.

29 . In accordance with the requirements of section

456.079, the Board of Medicine has adopted disciplinary

guidelines for the purpose of notifying the public of the range

of penalties typically imposed for violations of sections

458.331 and 456.072, and the rules adopted related to these

provisions. With respect to a violation of sections

456.072(1)(c) and 458.331(1)(c), the penalty for a first - time

offense is the same: from probation to revocation or denial of

the license, an administrativ e fine of $1,000 to $10,000, and 50

to 100 hours of community service. Fla. Admin. Code R. 64B8 -

8.001(2)(c). The rule also provides aggravating and mitigating

penalties to consider should a penalty outside the disciplinary

guidelines be recommended. Res ort to these factors is

unnecessary in this case, because the recommended penalty is

within the guidelines of rule 64B8 - 8.001(2)(c). However, in the

event that resort to aggravating and mitigating circumstances

was required, rule 64B8 - 8.001(3)(a) would be applicable, due to

the exploitation and both physical and emotional trauma imposed

on the victims of child pornography viewed by Respondent on

multiple occasions. Imposition of a fine and community service

is impractical in this case, given RespondentÓs incarceration

and the previously discussed conditions of release.

3 0 . The undersigned is mindful of the sacrifices any

physician makes to attain the education to become licensed as a

medical doctor. However, the undersigned is also mindful of the

trust that the Board of Medicine, and by extension, the people

of the State of Florida, place in those who attain licensure

status. Respondent Ó s actions show a grave violation of this

trust.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusio ns of

Law, it is RECOMMENDED that the Board of Medicine enter a Final

Order finding that Respondent has violated section

4 56. 072(1)(c), Florida Statutes, and revoking his license to

practice medicine.

DONE AND ENTERED this 2 6th day of November , 2012 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrativ e Hearings

this 2 6th day of November , 2012 .

COPIES FURNISHED:

Laura L. Glenn, Esquire

Department of Health,

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Ta llahassee, Florida 32399 - 3265

Christopher Carter, M.D., #20674 - 017

Federal Correctional Institution Englewood

9595 West Quincy Avenue

Littleton, Colorado 80123

Joy Tootle, Exec utive Dir ector

Department of Health

Board of Medicine

4052 Bald Cypress Wa y, Bin A02

Tallahassee, Florida 32399 - 1701

Jennifer A. Tschetter, 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 ex ceptions 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.