15-004486PL Department Of Health, Board Of Medicine vs. Brian Mitchell Lee, M.D. Status: Closed Recommended Order on Wednesday, December 2, 2015.

Summary: Petitioner demonstrated that Respondent's convictions related to traveling to meet someone Respondent believed to be underage were crimes related to the practice or ability to practice medicine. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MEDICINE,

Petitioner,

vs. Case No. 15 - 4486PL

BRIAN MITCHELL LEE, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Septemb er 29, 2015, Administrative Law Judge Lisa Shearer

Nelson of the Florida Division of Administrative Hearings (DOAH)

conducted a disputed - fact hearing pursuant to section 120.57(1),

Florida Statutes (2015), in Pensacola, Florida.

APPEARANCES

For Petitioner: Louise Wilhite - St. Laurent, Esquire

Brynna J. Ross, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Brian Mitchell Lee, M.D., pro se

13020 Sorrento Road

Pensacola, Florida 32507

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent has been

convicted of crime s related to the practice or the ability to

practice medicine in violat ion of section 456.072(1)(c), F lorida

Statutes (2013) , by virtue of being found guilty of traveling to

meet a minor to engage in sexual contact; unlawful use of a two -

way communications device to facilitate the commission of a

felony; and using a computer to facilitate or solicit the se xual

conduct of a child; and if so, what penalty should be imposed .

PRELIMINARY STATEMENT

The Department of Health (the Department or Petitioner)

filed an Administrative Complaint against Respondent, Brian

Mitchell Lee (Dr. Lee or Respondent), alleging th at he violated

section 456.072(1)(c) as a result of the jury verdict of guilty

with respect to the crimes identified above. Respondent filed an

Election of Rights form on June 1, 2015, indicating that he did

not dispute the facts alleged in the Administra tive Complaint and

requested a hearing before the Board of Medicine. However,

during that hearing, Respondent apparently indicated that he did

not believe that his convictions were related to the practice of

medicine. As a result, the proceedings were te rminated with

directions that the Department refer the case to DOAH. The

Department filed an Amended Adm inistrative Complaint on

August 13, 2015, and forwarded the case to DOAH for assignment of

an administrative law judge the same day.

By notice issued A ugust 18, 2015, the case was scheduled for

hearing on September 29, 2015. The parties participated in a

pre - hearing telephone conference on September 8, 2015, in order

to explain to Respondent the procedures for the hearing and to

give him the opportunity to ask any procedural questions. On

September 21, 2015, the Department filed a Motion for Official

Recognition , requesting official recognition of several statutes

and rules, as well as the transcripts of proceedings in Escambia

Count y Case No. 2014 - CF - 0 00027, and the Information, Jury

Verdict, Jury Judgment, Judgment and Sentence , and Order of

Probation from the same file. The Department also moved to seal

RespondentÓs Respons e to Interrogatories, which was filed on

DOAHÓs docket and contain the identit ies of patients. Both

motions were granted at hearing, and RespondentÓs responses to

i nterrogatories are part of the record but not available to the

public for viewing.

The hearing proceeded as scheduled. Petitioner presented no

witnesses and Petitioner Ó s Exhibits 1 - 12 were admitted into

evidence. Respondent also presented no witnesses but

RespondentÓs Exhibits 2 and 6 were admitted into evidence.

The Transcript of the hearing was filed with DOAH on

October 14, 2015. Respondent and Petitioner filed P roposed

Recommended Orders on October 23 and 26, 2015, respectively.

Both submissions have been carefully considered in the

preparation of this Recommended Order. All references are to the

2015 codification of the Florida Statutes unless otherwise

indica ted.

FINDING S OF FACT

1. The Department is the state agency charged with the

licensing and regulation of physicians pursuant to section 20.43

and chapters 456 and 458, Florida Statutes. The Board of

Medicine is the professional licensing board charged wi th final

agency action with respect to physicians licensed pursuant to

chapter 458.

2. At all times relevant to these proceedings, Respondent

was licensed as a physician by the State of Florida, and holds

license number ME 79663.

3. Respondent is an inte rnist in Perdido Key, where he

practices as a solo practitioner. Respondent considers himself

to be an Ðold fashioned physicianÑ who spends 30 - 45 minutes with

each patient. This pace necessitates that he see fewer patients

per day than the apparent norm.

4. In mid - to - late 201 3 , Respondent had reached a cross -

roads in his life. He was in the midst of a drawn - out divorce

proceeding, and was coming to terms with his sexuality as a gay

man. He felt like he was drowning in the paperwork associated

with his practice, and was in debt. He was also mildly depressed

about his life.

5. While Respondent had come to terms with his

homosexuality , he had not told his family and friends and was

unsure of their response. Respondent does not drink or smoke,

and does not go to bars, so his venues for meeting other men with

whom to build any kind of relationship were limited. He decided

to post ads on CraigÓs List in the ÐCasual Encounter Section.Ñ

One of his ad s read in part, ÐI prefer younger Men. Under 30 is

a big plus . . . . No reciprocation required if you come to me,

are fit and under 25.Ñ

6. On December 22, 2013, Respondent received a response

from a person identified as ÐMatt.Ñ Respondent corresponded by

e - mail with Matt over the next couple of weeks. Fro m the very

beginning, Matt described himself as Ðkinda young.Ñ Respondent

responded by saying, ÐI like young,Ñ to which Matt revealed he

was not yet 18. The following day, Matt stated that he had just

turned 14 and was inexperienced. Respondent wrote th at he would

love to meet Matt and Ðshow [him] a few things,Ñ and stated that

ÐI love inexperienced guys that I can take my time with and see

them experience the joy of sex for their first time.Ñ Many of

the e - mails are quite graphic and reciting their con tents would

serve no purpose. These e - mails lasted from December 23, 2013,

through January 2, 2014.

7. In reality, the person responding to the ad and

identified as Matt was not a 14 - year - old boy. Matt was actually

Zach Ward, an undercover police office r.

8. During RespondentÓs e - mail communications with Detective

Ward, he offered to meet Matt eight separate times. He was aware

that his conduct had criminal implications and noted this fact

several times. For example, he advised Matt not to save a phot o

that he sent to Matt and not to save any of their messages Ðin

case anyone gets ahold of your phone , Ñ and he advised Matt to Ðbe

careful what they text,Ñ but that there is Ðnothing illegal with

us kissing and making out.Ñ

9. Respondent even attempted to justify his actions in an

e - mail, stating:

I have rationalized that it is morally ok if

you are the one who instigates it. Clearly

doesnÓt make it legal. But I think it is

almost preferable for a young guy to be able

to experiment and play safe and lear n from

an older person as opposed to playing with a

girl your age and ending up getting her

pregnant. Yet that is somehow socially

accepted but older with younger is not

. . . . I have given this much

consideration. I feel if the opportunity

came knock ing at my door, I wouldnÓt chase

it away.

10. Respondent also spoke to Matt about his practice as a

physician. He told Matt that he was a family doctor , and

communicated with him by e - mail between seeing patients. He

discussed a 16 - year - old patient wi th Matt, identifying the

patient by fir st name; stating that he had seen the patient

naked; that he thought the patient was ÐcuteÑ; and that he wished

the patient was gay. In talking about this patient, Respondent

told Matt he always asks teenagers about their sexual preference,

and also stated:

Some people make jokes about pedophiles

becoming doctors and teachers. But, as long

as they donÓt act on their desires and donÓt

make advances and seduce their patients, I

donÓt see any harm in it. I think it

act ually makes me a better doctor. I screen

teens for issues like depression, drug use,

sexual activity and orientation. I spend a

little more time with them than most

doctors. But I treat them like a person and

donÓ t just push them out the door. To me, a

sexual predator uses their influence to

coerce a child into sexual acts. I would

never do that . . . .

11. Eventually, Matt and Respondent agreed to meet at a

bowling alley near MattÓs purported home. On January 2, 2014,

Respondent left his office an d traveled to the pre - arranged

meeting location at a bowling alley. Upon his arrival,

Respondent was arrested.

12. On April 25, 2014, the State Attorney for Escam bia

County filed a three - count I nform ation against Respondent. The

I nformation alleged tha t on January 2, 2014, Respondent knowingly

traveled within the state to engage in unlawful sexual conduct

with a person Respondent believed to be a child less than 18

years old, in violation of section 847.0135(4)(a), Florida

Statutes (2013); that between December 23, 2013 , and January 1,

2014, Respondent knowingly used a cell phone or two - way

communication device to facilitate or further the commission of a

felony, i.e., traveling to meet a minor to engage in sexual

conduct, in violation of section 934.215 , Florida Statutes

(2013); and that between December 22, 2013 and January 1, 2014,

Respondent knowingly used a computer or internet service to

attempt to seduce or solicit another person Respondent believed

to be a child less than 18 years old to engage in unlawful sexual

conduct, in violation of section 847.0135(3)(a). The Information

was filed in Escambia County Circuit Court and docketed as Case

No. 1714CF000027A. For some reason that has not been explained,

the documents also bear docket n o. 2014 - CF - 0 00027.

13. Respondent was tried before a jury on January 12, 14,

and 15, 2015. Respondent testified on his own behalf during the

criminal trial, and claimed that he was aware that Matt was not a

young boy , but was in fact an undercover police officer po sing as

an underage male . He felt law enforcement was targeting

homosexuals, and he wanted to use the opportunity presented to

him to bring attention to this social issue that he felt needed

to be addressed. He also claimed that he was aware there was a

good chance that he would be arrested, but viewed it as a way to

deal with his growing dissatisfaction with his practice and his

need to admit to his family and friends his decision in terms of

his sexuality. By its finding of guilt, the jury clearly did not

find his claim to be credible.

14. Respondent wrote a letter to his housekeeper the day

before the pre - arranged meeting with Matt, telling her that he

expected to be arrested and that he believed that Matt was an

undercover police officer. The house keeper found the letter and

turned it over to defense counsel. While the letter was not

admitted into evidence in the criminal proceeding, it was

admitted in this disciplinary case. While Respondent believes

that the letter shows that he did not believe Matt to be

underage, this disciplinary proceeding is not an opportunity to

retry the criminal action.

15. Moreover, RespondentÓs claim that he knew Matt was not

an under age boy , b ut rather a police officer, is rejected as not

credible. RespondentÓs lett er to his housekeeper could be just

as easily interpreted as an attempt to provide a defense for

Respondent should he get caught. Even assuming, for the sake of

argument, that Respondent did in fact know Matt was an undercover

officer, a finding which the undersigned does not make , his

actions are not transformed into a selfless act. B oth

RespondentÓs testimony at hearing and the letter he wrote to his

housekeeper evidence a total disregard of the consequences his

actions could bring and what effect those actions could have on

the continued vitality of his practice and the well - being of his

patients.

1 6 . On January 15, 2015, the jury found Respondent guilty

of all counts charged. At his sentencing hearing on February 23,

2015, several patients, employ ees, and a family member testified

on his behalf. The circuit court judge withheld adjudication,

and sentenced Respondent to two years of community control,

followed by 13 years of probation. This sentence represents a

downward departure from the crimina l sentencing guidelines.

Respondent was designated as a lifetime Sex Offender ; required to

enroll and complete Sex Offender Counseling and any recommended

treatment ; prohibited from caring for or treating minors without

notifying the minorÓs parents of hi s Sex Offender status , and

having another staff member present ; prohibited from any other

contact with those under the age of 18; and prohibited from using

a computer unless required for the treatment of patients. Among

the many conditions of probation is the requirement that

Respondent must work Ðdiligently at a lawful occupation, advise

[his] employer of [his] probation status, and support any

dependents to the best of [his] ability, as directed by [his]

officer.Ñ

1 7 . RespondentÓs conditions of communi ty control require

check - ins with his Community Control Officer approximately three

times weekly, and that he keep his Community Control Officer

apprised of his whereabouts at all times. Any travel outside his

work schedule must be approved in writing, an d Respondent must

notify his Community Control Officer in advance of any travel to

address a patient emergency .

1 8 . Respondent only has one part - time staff member, a

receptionist, available to be present during examination and

treatment of minor patient s . His receptionist is not licensed by

the Department. At hearing, he testified that he no longer sees

minor patients.

1 9 . Respondent asserts that his conviction is not related

to the practice or the ability to practice medicine, because he

had no inte nt to harm any minor. However, the evidence indicates

that he went to the bowling alley for the meeting knowing that

his actions would in all likelihood get him arrested. The

evidence, taken as a whole, suggests that the encounter was worth

the risks to him. This fact alone shows a disregard for the

well - being of his patients and their continued care. Moreover,

the conditions of his criminal sentence place specific

restrictions on his medical practice by requiring the parents of

any minor patient to be informed of his Sex Offender status , and

requirin g the presence of another staff person in the office

during any treatment of minors. Further, as noted by

Dr. LibertÓs testimony, Respondent is prohibited from having

contact with minors outsi de the supervi sed care of under aged

patients. Having a staff member available, even part - time, for

supervised patient visits does not address the very real

probability of children being present in his office that are

related to his patients. Clearly, these restriction s that have

been imposed as a result of his convictions are related to the

RespondentÓs ability to practice medicine.

20. The personal qualities essential to the sound practice

of medicine include integrity, respect for the public trust, good

judgment, a nd respect for the well - being of others. RespondentÓs

actions reflect extremely poor judgment and a violation of both

the trust of his patients and the trust society places in

physicians . His Sex Offender status undermines the confidence

that the public is entitled to have in the judgment and integrity

of a health care professional licensed in this state. Patients

should not have to check the Sex Offender Registry before placing

themselves into the care of a licensed physician.

21. RespondentÓs convict ions for the crimes charged in the

Information are convictions of crimes related to the practice or

the ability to practice medicine in the State of Florida.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction of the subject matter and the

parties to this actio n pursuant to sections 120.569 and

120.57(1 ) .

23. This is a proceeding whereby the Department seeks to

revoke RespondentÓs license to practice medicine. The Department

has the burden to prove the allegations in the Amended

Administrative Complaint by cle ar 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 eviden ce 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 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 Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

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

bur den of proof may be met where the evidence is in conflict;

however, Ðit seems to preclude evidence that is ambiguous.Ñ

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988

(Fla. 1 st DCA 1991).

24. The Amended Administrative Complaint charges Res pondent

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 subsecti on (2) may be taken:

* * *

(c) Being convicted or found guilty of, or

entering a plea of guilty or nolo contendere

to, regardless of adjudication, a crime in

any jurisdiction which related to the

practice of, or the ability to practice, a

licensee's pro fession.

25. Among the penalties authorized for a violation of

section 456.072(1)(c) are suspension and permanent revocation 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 demonstrate that, although the

statutory definition of a particular

profession does not specifically refer to

acts involved in the crime com mitted, 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 murde r.

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

District Court of Appeal has held that

although an accountant Ó s fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of t he 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 R egulation, 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

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. RespondentÓs actions represent a

violation of the trust placed in physicians , on whom patients

rely to make life - changing decisions . His actions demonstrate

such impaired judgment , that they reflect the antithesis of w hat

is expected of a physician licensed in this state.

28. Given RespondentÓs lack of judgment and the practical

limitations on the practice of medicine required for Respondent

to be in compliance with his Community Control and probationary

terms , the De partment has proven a violation of section

456.072(1)(c) by clear convincing evidence.

29. As required by section 456.079, the Board of Medicine

has adopted disciplinary guidelines in order to notify the public

of the range of penalties typically imposed for violations of

sections 458.331 and 456.072, and the rules related to these

provisions. For violation s of sections 456.072(1)(c) and

458.331(1)(c), the penalty for a first - time offense is the same:

from probation to revo cation or denial of the licens e; an

administr ative 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 b e

recommended. Resort to these factors is unnecessary in this

case, because the recommended penalty is within the guidelines of

rule 64B8 - 8.001(2)(c). However, i mposition of a fine and

community service is impractical, given the terms of RespondentÓs

Com munity C ontrol and the ultimate penalty recommended.

30. The undersigned is mindful of the sacrifices any

physician makes to attain the education to become licensed as a

medical doctor. All of the letters provided by pa tients to the

trial court in Respo ndentÓs sentencing have been carefully

considered. It is a shame that Respondent was willing to

sacrifice his practice and the well - being of such loyal patients.

However, the undersigned is also mindful of the trust that the

Board of Medicine, and by ext ension, the people of the State of

Florida, place in those who attain licensure status.

RespondentÓs actions show a grave violation of this trust.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

o rder finding that Respondent has violated section 456.072(1)(c),

Florida Statutes, and revoking his license to practice medicine.

DONE AND ENTERED this 2nd day of December , 2015 , 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 - 6847

www.doah.state.fl.us

F iled with the Clerk of the

Division of Administrative Hearings

this 2nd day of December , 2015.

COPIES FURNISHED:

Brian Mitchell Lee , M.D.

13020 Sorrento Road

Pensacola, Florida 32507

Louise Wilhite - St . Laurent, Esquire

Prosecution Services Unit

Depart ment of Health

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32399

(eServed)

Brynna J. Ross, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C 65

Tallahassee, Florida 32399 - 3265

(eServed)

Andre Ourso, Executi ve Director

Board of Medicine

Department of Health

4052 Bald Cypress Way , Bin C03

Tallahassee, Florida 32399 - 3253

(eServed)

Nichole Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

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.