16-002662PL Department Of Health, Board Of Medicine vs. Barry M. Schultz, M.D. Status: Closed Recommended Order on Wednesday, July 20, 2016.

Summary: Respondent's conviction of 55 counts of trafficking in oxycodone related to practice of medicine and warranted revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 16 - 2662PL

BARRY M. SCHULTZ, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 21, 2 016, a hearing was held in Tallahassee,

Florida, before F. Scott Boyd, an Administrative Law Judge

assigned by the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Yolonda Y. Green, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: No A ppearance

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent was found

guil ty of multiple counts of trafficking in oxycodone; whether

those crimes relate to the practice of, or the ability to

practice, medicine; and, if so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On February 26, 2016, the Department of Health (Pe titioner

or Department) filed an Administrative Complaint against Barry M.

Schultz, M.D. (Respondent or Dr. Schultz) , on behalf of the Board

of Medicine (Board). The complaint charged Respondent with being

convicted or found guilty of a crime which relate s to the

practice of, or the ability to practice, medicine, in violation

of section 456.072(1)(c), Florida Statutes (2015). 1/ Respondent

disputed material facts alleged in the complaint and requested an

administrative hearing, 2/ which was conducted on Jun e 21, 2016.

At hearing, neither Respondent nor a person representing him

appeared. Respondent had been served copies of the

Administrative Complaint, as well as the Initial Order, Notice of

Hearing, Order of Pre - hearing Instructions, and Order Allowing

Te stimony by Telephone both at Respondent ' s address of record and

at the Palm Beach County Sheriff ' s Office Detention Center .

After his initial request for hearing, Respondent did not file

any pleadings or motions, request to testify by telephone, or

otherw ise participate in the proceedings. At hearing, Petitioner

offered two exhibits, P - 2 and P - 3, which were admitted into

evidence. Petitioner also offered the testimony of Dr. Kevin

Chaitoff, M.D., an expert in anesthesiology and interventional

pain medici ne.

The final hearing T ranscript was filed on June 28, 2016.

Petitioner timely filed a Proposed Recommended Order, which was

considered in preparation of this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

regulati ng the practice of medicine in the state of Florida,

pursuant to section 20.43 and chapters 456 and 458, Florida

Statutes. The Board is charged with final agency action with

respect to physicians licensed pursuant to chapter 458.

2. At all times material to this proceeding, Dr. Schultz was

a licensed physician within the state, having been issued license

number ME67047.

3. Dr. Schultz ' s address of record is 316 Capri G, Delray

Beach, Florida 33484. At the time of hearing, Dr. Schultz was

incarcerated in the Palm Beach County Sherriff ' s Office Detention

Center, M - S - 02 - A - 07 - B, Post Office Box 24717, West Palm Beach,

Florida 33416.

4. On November 13, 2015, Dr. Schultz was found guilty

of 55 counts of trafficking in oxycodone in violation of

section 893.1 35(1)(c), Florida Statutes (2009) or (2010), in

the Circuit Court of the Fifteenth Judicial Circuit, Criminal

Division, in and for Palm Beach County, Florida.

5. As Dr. Chaitoff testified, in order to prescribe

controlled substances, a person must be a li censed physician and

then may do so only within the usual course of medical practice

for a legitimate medical purpose.

6. As Dr. Chaitoff testified after reviewing relevant

documents, the oxycodone prescribed by Dr. Schultz was not

prescribed for legitima te medical purposes and was done other

than within the course of professional practice.

7. As Dr. Chaitoff testified, Dr. Schultz ' s convictions

relate to the practice of medicine.

CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the parties and the

s ubject matter of this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes (2016).

9. A proceeding to suspend, revoke, or impose other

discipline upon a professional license is penal in nature. State

ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491

(Fla. 1973). Petitioner must therefore prove the charges against

Respondent by clear and convincing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of

Banking & Fin. v. Osborne Stern & Co . , 670 So. 2d 932 (Fla.

1996)).

10. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

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 explicit and the witnesses must be

lacking in 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 a

firm belief or conv iction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

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

11. D isciplinary statutes and rules " must alway s be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

12. Petitioner charged Respondent with violation of section

456.072(1)(c), which provided, in relevant part:

(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, regardless of adjudication, a crime in any

jurisdiction which relates to the practice of,

or the ability to practi ce, a licensee ' s

profession.

13. Petitioner proved by clear and convincing evidence that

Respondent was found guilty of the crime of trafficking in

oxycodone and that his convictions related to the practice of

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

14. The Board imposes disciplinary action upon licensees in

accordance with disciplinary guidelines set by rule. Florida

Administrative Code Rule 64B8 - 8.001(2)(c) provided that the

recommended penalty for the first offense of being found guilty of

a crime directly relat ed to the practice of medicine, or the

ability to practice medicine , should range " from probation to

revocation or denial of the license, an administrative fine

ranging from $1,000.00 to $10,000.00. "

15. Rule 64B8 - 8.001(3) provided th at the following

aggravating and mitigating circumstances should also be

considered:

Aggravating and Mitigating Circumstances.

Based upon consideration of aggravating and

mitigating factors present in an individual

case, the Board may deviate from the

pen alties recommended above. The Board shall

consider as aggravating or mitigating factors

the following:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the tim e of the offense:

no restraints, or legal constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction and

the length of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged with

violating the standard of care p ursuant to

Section 458.331(1)(t), F.S., but the

licensee, who is also the records owner

pursuant to Section 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

16. No aggravating or mitigating factors are present in the

record to warrant deviation from the wide range of penalties

already permissible under the rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

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

final order finding Dr. Barry M. Schultz in violation of

section 456.072(1)(c), Florida Statutes, and revoking his license

to practice medicine.

DONE AND ENTERED this 20 th day of July , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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

Filed with the Clerk of the

Divi sion of Administrative Hearings

this 20 th day of July , 2016 .

ENDNOTE S

1/ All references to the Florida Statutes or provisions of the

Florida Administrative Code refer to versions in effect in

November 2015, when the alleged convictions took place, exce pt as

otherwise indicated.

2/ It is not entirely clear from the Election of Rights which

facts in the Administrative Complaint Respondent contested. At

least in part, he sought to relitigate his conviction, which is

not appropriate. See Spuza v. Dep ' t of Health , 838 So. 2d 676

(Fla. 2d DCA 2003). Giving Respondent the benefit of doubt,

Petitioner forwarded the request to DOAH.

COPIES FURNISHED:

Yol onda Y. Green, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

T allahassee, Florida 32399 - 3265

(eServed)

Barry Schultz, M.D.

316 Capri G

Delray Beach, Florida 33484

Barry Schultz, M.D., 03291126

Palm Beach County Sheriff ' s Office

M - S - 02 - A - 07 - B

Post Office Box 24717

West Palm Beach, Florida 33416

Michael Jovane W illiams, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Claudia Kemp, J.D., Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 03

Tallahassee, Florida 32399 - 3253

(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.