17-004337PL Department Of Health, Board Of Medicine vs. Raquel C. Skidmore, M. D. Status: Closed Recommended Order on Monday, April 30, 2018.

Summary: Respondent sold prescription for medical marijuana to a non-resident prior to qualifying as an ordering physician, without advising patient that medical marijuana was still illegal in Florida. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 17 - 4337PL

RAQUEL C. SKIDMORE, M. D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Februar y 20, 2018, Administrative Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings conducted a

hearing pursuant to section 120.57(1), Florida Statutes (2017),

in Panama City, Florida.

APPEARANCES

For Petitioner: Louise Wilhite - St Laurent , Esquire

Ross Daniel Vickers, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Alvin Lee Peters, Esquire

Peters & Scoon Attorneys at Law

25 East 8th Street

Panama City, Florida 32401

STATEMENT OF THE ISSUE S

The issues to be decided are whether Respondent violated

sections 456.072(1)(a), (n), and (w) , and 458.331(1) (g), (k),

(q), and (v) , Florida Statutes (2015), as alleged in the

Administrative Complaint ; and , if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On May 30, 2017, Petitioner, the Department of Health

(Petitioner , the Department , or DOH ), filed an Administrative

Complaint against Respondent, Dr. Raquel Skidmore, alleging that

she vio lated sections 456.072(1)(a), (n), and (w), and

458.331(1)(g), (k), (q), and (v). On June 20, 2017, Respondent

filed an Answer and Request for § 120.57(1) Hearing, and on

August 2, 2017, the case was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The hearing was originally scheduled to take place on

September 22, 2017. At the request of both parties, the hearing

was rescheduled for October 30, 2017. On October 11, 2017,

Petitioner filed an Opposed Motio n to Disqualify Counsel for

Respondent on the Basis of Conflict of Interest and Request for

Hearing. At the time, Respondent was represented by Billy - Joe

Hoot Crawford. While the m otion indicated that it was opposed,

on October 16, 2017, Respondent filed a Motion to Withdraw as

Counsel and Motion for Protective Order, by which Mr. Crawford

sought to withdraw as counsel for Respondent, agreeing that

Mr. Crawford played an integral role in the factual circumstances

underlying Petitioner Ó s complaint, and was therefore not in a

position to continue as counsel of record. The motion also

requested that Respondent be afforded 30 days to retain other

counsel, and that the then - scheduled depositions and pre - hearing

conference be delayed pending the appearance of n ew counsel.

Petitioner immediately canceled the scheduled depositions, and on

October 17, 2017, an Order Canceling Hearing was issued,

directing the parties to file a s tatus r eport no later than

November 17, 2017.

Alvin Peters, Esquire, entered an appeara nce as counsel for

Respondent on November 14, 2017, and consistent with the Joint

Status Report filed by the parties, the hearing was rescheduled

for February 20, 2018, and proceeded as scheduled. The parties

filed a Joint Pre - h earing Stipulation that con tained facts to

which the parties stipulated no proof would be required at

hearing. Those facts have been incorporated into the Findings of

Fact below. At hearing, Joint Exhibits numbered 1 through 28

were admitted into evidence. Petitioner presented th e testimony

of patient R.S., Caitlyn Clark, Andre Moore, and Courtney

Coppola. Respondent testified on her own behalf and presented

the testimony of Billy - Joe Hoot Crawford, and patients P.P.,

S.N.C., and T.S. Respondent Ó s Exhibits 1 and 2 were also

admi tted.

The Transcript of the hearing was filed with the Division of

Administrative Hearings on March 22, 2018. Petitioner and

Respondent Ó s Proposed Recommended Orders were filed on April 2

and 3, respectively, and have been considered in the preparation

of this Recommended Order. All references to the Florida

Statutes are to the 2015 codification, unless otherwise

indicated.

FINDING S OF FACT

The F indings of F act below are b ased upon the testimony and

documentary evidence presented at hearing, the demean or and

credibility of the witnesses, and on the entire record of this

proceeding .

1 . Petitioner is the state agency charged with regulating

the practice of medicine pursuant to section 20.43 and chapters

456 and 458, Florida Statutes.

2 . Respondent is a licensed medical doctor holding

DOH license number ACN 244.

3 . Respondent holds a temporary certification to practice

medicine only in areas of critical need (ACN) approved pursuant

to section 458.315.

4 . Respondent is the owner of and only physician p racticing

at Gulf Coast Holistic and Primary Care, Inc., a Department -

approved ACN facility. Her current primary practice address is

219 Forest Park Circle, Panama City, Florida 32405.

Medical Marijuana Regulation in Florida

5 . As a preliminary matter, this case is not about the

wisdom of the policy decision to allow patients access to medical

marijuana in the State of Florida , the efficacy of its use, or

the nature of the regulatory scheme to implement the medical

marijuana program . Rather, this case i nvolves Respondent Ó s

actions in ordering medical marijuana and whether those actions

comported with Florida law as it existed at the time .

6 . Generally, at all times relevant to these proceedings,

cannabis or marijua na wa s a Schedule I controlled substanc e

pursuant to section 8 93.03(1)(c)7., Florida Statutes , meaning

that it is a drug with a high potential for abuse and had no

accepted medical use in treatment of patients.

7 . In 2014, the Florida Legislature created section

381.986, Florida Statutes (20 14), which legalized the use of

low - THC cannabis for medical use under limited and strictly

regulated circumstances. In sum, low - THC cannabis would be

available to patients suffering from cancer or a medical

condition causing seizures or persistent muscl e spasms that would

benefit from the administration of low - THC cannabis. The 2014

version of the law is sometimes referred to as Ð Charlotte Ó s Web. Ñ

8 . Section 38 1 .986(2) contained the requirements that a

physician had to meet to be qualified to order lo w - THC cannabis

for his or her patients. A physician had to take an eight - hour

course provided by the Florida Medical Association (FMA);

register as the ordering physician in the compassionate use

registry ; and document the dose, route of administration , a nd

planned duration of use by the patient. A physician also had to

submit a treatment plan for the patient to the University of

Florida. Further, registered physicians could only order low - THC

cannabis for Florida residents.

9 . In 201 6 , the Florida Legi slature amended section

381.986, effective March 2016, to include use of full - THC medical

cannabis , sometimes referred to as medical marijuana, for

terminal conditions. In November 2016, Amendment 2 passed, which

created Article X , section 29 of the Flori da Constitution,

providing for the production, possession, and use of medical

marijuana in Florida. During the 2017 Special Session,

s ection 38 1 .9 86 was amended to implement Amendment 2.

Ch. 17 - 232, § § 1, 3, 18, Laws of Fla. None of the amendments ,

whi ch were passed in 2016 and 2017 , were in place during the

period relevant to this case.

10 . The first course offered by the FMA pursuant to section

381.986 was available on November 4, 2014. The substance of the

course covered the requirements of secti on 381.986 and the lawful

ordering of low - THC cannabis.

11 . T he Office of Compassionate Use within the Department

first allowed physicians to register as ordering physicians on

July 1, 2016.

12 . On September 8, 201 5, Respondent sent an email from her

DOH email address to her personal email address with a hyperlink

to the FMA course. Instead of taking the course at that time,

which she knew to be the required course for ordering low - THC

cannabis, Respondent instead took a free on line course from an

entity called NetCE, entitled Ð Medical Marijuana and Other

Cannabinoids. Ñ

13 . Respondent did not complete th e required FMA course

until August 25, 2016 . She is presently an authorized ordering

physician .

Respondent Ó s Care and Treatment of R.S.

14 . Patient R.S . is a 66 - year - old retired physician

assistant , who resides in Minnesota. R.S. practiced as a

physician assistant for approximately 40 years in Minnesota. For

about four years, R.S. spent his winters in the Panama City area.

15 . R.S. suffers from a vari ety of medical conditions,

including S tage IV metastatic renal cell carcinoma. When R.S.

first presented to Respondent the f all of 2015 , he had stopped

all treatments for his cancer because he could not tolerate the

chemotherapies or the immunotherapy pre scribed for him.

16 . While wintering in Panama City, R.S. took his dog to a

dog park and got to know some people who went there regularly.

When some of those people learned that he had metastatic cancer,

one person asked him if he had tried medical marij uana, and he

told her that it was not then legal in Minnesota. R.S. was told

that Dr. Skidmore could provide legal medical marijuana to him.

17 . At the time that R.S. presented to Respondent for

treatment, it was not lawful to order, prescribe, or dispe nse

medical marijuana in the State of Florida.

18 . R.S. called Respondent Ó s office to obtain an

appointment. At the time of his call, he told the receptionist

that he had heard Respondent could give him a prescription for

medical marijuana. R.S. knew his cancer was incurable, but given

his inability to tolerate conventional treatment, he was hoping

that the medical marijuana might help reduce the size of his

tumors and lengthen his life.

19 . R.S. first presented to Respondent on September 28,

2015. He provided to Respondent medical records from his local

oncologist, which confirmed his diagnosis of terminal cancer , and

contained his most recent laboratory results .

20 . Respondent took R.S. Ó s blood pressure and pulse, and

most likely checked his re spiration. She listened to his heart

and chest with a stethoscope. She did n ot perform a review of

systems, which is review of the patient from the head working

down through the different systems of the body. As a physician

assistant, R.S. was familiar with the components of a review of

systems, and described them in detail at hearing. He testified

that Respondent did not check his eyes, feel his lymph nodes,

palpate his abdomen, or check his reflexes.

21 . R.S. testified that Respondent did not ask h im about

any history of depression , did not ask him to provide any

additional medical records , and did not tell him she wanted to

see more lab work than what he had provided to her. R.S.

believes that Respondent may have mentioned meditation, which he

was already doing, but did not recommend yoga, essential oils, or

any modifications in his diet. Had she suggested them, he would

have tried them. His testimony is credited. She also did not

attempt to place Respondent in a federal ly - approved experimental

marijuana therapy program.

22 . Respondent testified and her medical records indicate

that she ordered labs for R.S. R.S. testified that no labs were

ordered. The medical records indicate that labs were ordered ,

but do not indicate what tests were actual ly ordered, an omission

that she blamed on her medical assistant. She testified in

deposition that she ordered a lipid panel, V itamin D panel,

thyroid panel, and urine panel. The lab tests that R.S. provided

to her from his oncologist contained none of t hese. R.S. never

had the tests Respondent claims she ord ered because Respondent

never actually ordered them. The one treatment that Respondent

performed was a form of acupuncture at this first visit.

23 . R.S. paid $140 in cash for his first visit to

Res pondent . R.S. was a cash - pay patient because medical

marijuana was not a benefit under his existing insurance plan.

24 . Respondent advised R.S. that he would need to be seen

three times over a 90 - day period in order to obtain medical

marijuana.

25 . R. S. returned to Respondent on October 19, 2015. R.S.

paid $90 for this visit. As with the first visit, Respondent

performed only a very limited physical examination, taking his

blood pressure, pulse, respiration, and listening to his chest.

While the ele ctronic medical records for this visit indicate that

labs were pending, none were actually ordered. Despite not

having any lab results, the records state Ð will recommend

medicinal marijuana after receiving previous records. Ñ

26 . R.S. Ó s third visit was Ja nuary 15, 2016. As with the

previous visits, Respondent performed only a perfunctory

examination, and the charge for this visit was $9 0 .

27 . At this third visit, Respondent told R.S. that he had

complied with the requirements in Florida to be seen for 9 0 days,

and that she would send in her assistant with the paperwork R.S.

would need to obtain medical marijuana from a dispensary in

Pensacola .

28 . Respondent did not advise R.S. that medical marijuana ,

as described in the certificate , was not lawful in F lorida at

that time , and that he could be arrested if he purchased it in

Florida . She did not advise him that he was in eligible for

low - THC cannabis when it became available because he was not a

resident of Florida . Respondent did not discuss the risks and

benefits of medical marijuana.

29 . Respondent then provided to R.S., through her

receptionist/medical assistant Caitlyn Clark, a document that she

referred to as a Ð certificate Ñ or a Ð recommendation. Ñ The

certificate, discussed in more detail below, appear s to be a

prescription for medical marijuana. It was not for low - THC

cannabis. As R.S. described the document, it looked like a

prescription to him, just not on a prescription pad. R.S. was

required to pay $250 for this certificate, which was in a ddition

to the visit fee of $9 0 .

30 . Respondent provided this certificate despite the fact

that, according to her records, R.S. had not completed the labs

she claimed to have ordered for him, and did not comply with any

recommendations for modification o f his diet, or use of essential

oils, yoga, or meditation. His electronic medical record for

this visit included a plan of Ð 1000 mg of canabis [sic] extract

oil daily. Ñ

31 . In addition to the certificate , R.S. received from

Ms. Clark a flyer from an enti ty called Cannabis Therapy

Solutions, with the names of Joe and Sonja Salmons and their

telephone numbers . While R.S. received the flyer from Ms. Clark,

copies of the flyers were also available on the tables in the

reception area of the office. R.S. beli eved, based on the

information given to him from Respondent and Ms. Clark, that he

was being referred to Cannabis Therapy Solutions to obtain the

medical marijuana , which he believed was prescribed for him

through the use of the certificate.

32 . R.S. call ed the numbers on the flyer and was unable to

reach anyone. One number was disconnected, and the message s he

left on the other number w ere never returned.

33 . When R.S. was unable to reach the Salmons at the

numbers listed on the flyer he received at Res pondent Ó s office,

he did some research on the I nternet. Through this research, he

learned for the first time that medical marijuana could not yet

be obtained legally in Florida. R.S. felt that he had been

Ð taken Ñ by Respondent, and wanted to get his mone y back.

34 . R.S. returned to Respondent Ó s office in February 2016,

and demanded a refund of the money he had paid. He told

Respondent that he was unable to reach the Salmons, and had

learned that medical marijuana was not yet legally available in

Florida . Respondent told him that s he was only trying to help

him. She also tried to contact the Salmons, and was unsuccessful

in doing so.

35 . Respondent Ó s staff initially offered to refund the $250

R.S. had paid for the certificate, but only if he returned it.

R.S. refused to do so, and stated that it was his only proof to

present to the Florida Board of Medicine.

36 . R.S. admitted at hearing that he was angry and loud

when he visited the office to demand his money. He was

intentionally loud because he w anted the patients in the waiting

area to hear what was going on. While he was loud, he was not

violent, and Ms. Clark testified that she did not feel threatened

by him. It was only after he stated that Respondent would have

to deal with the state licens ing board that he was refunded all

of the money he had paid to Respondent Ó s office.

37 . R.S. became a participant in the medical marijuana

program eventually authorized in his home state of Minnesota. It

has not provided the results for which he was hopi ng, in that his

tumors have increased in size and number.

Ð The Certificate Ñ

38 . The certificate that Respondent issued to R.S. was on

8 1/2 by 11 inch paper. It was printed on security paper,

meaning that when copied, the document is reproduced with the

word Ð void Ñ printed all over it. The document had Respondent Ó s

office name, address, and telephone and fax numbers at the top,

along with Respondent Ó s name, DEA number , and Florida medical

license number. It lists R.S. Ó s name, patient number , and

add ress, along with the date the document was issued to him. At

the bottom of the document, there is a blank to fill in how many

refills are allowed, and a statement Ð to insure brand name

dispensing, prescriber must write medically necessary on the

prescript ion. Ñ

39 . Immediately below the patient name and address, the

document reads:

RX Allowed Quantity: 1 - 2 gm/d THCa - THC: CBD

concentration in ratio of 1:1 or 1:2 via oral

ingestion or vaporization, include plant

vaporization.

Max allowance 2 gm/d

40 . In the center of the document is the following

statement:

I certify that I have personally examined the

above named Patient , and have confirmed that

they [sic] are currently suffering from a

previously diagnosed medical condition. I

have reviewed th e patient Ó s medical history

and previously tried medication(s) and/or

treatment(s).

Based on this review, I feel cannabis is

medically necessary for the safety and well -

being of this patient. Under Florida law,

the medical use of cannabis is permissible

provided that it Ó s [ sic ] use is medically

necessary. See Jenks v. State, 566 So. 2d

(1 St DCA 1991).

In making my recommendation, I followed

standardized best practices and certify that

there exists competent and sound peer - review s

[ sic ] scientific eviden ce to support my

opinion that there exists no safer

alternative than cannabis to treat the

patient Ó s medical condition(s). In addition,

I have advised the patient about the risks

and benefits of the medical use of cannabis,

before authorizing them [sic] t o engage in

the medical use of cannabis.

This patient hereby gives permission for

representatives of Green L ife Medical Systems

to discuss the nature i f [sic] their [sic]

condition (s) and the information contained

within this document for verification

purp oses. This is a non - transferable

document. This document is the property of

the physician indicated on this document and

be [sic] revoked at any time without notice.

Void after expiration, if altered or misused.

41 . The certificate that R.S. received was signed by both

Respondent and R.S. The copy the Department obtained from

Respondent is not signed.

42 . Respondent testified that she did not want the

references to prescriptions to be on the certificates, but was

told by the printer she used that t he only security paper

available was preprinted with that information. This claim is

not credible. Much of what is contained on the document is

preprinted. Had Respondent objected to the use of the word

Ð prescription Ñ on the document, she could have dir ecte d that the

references to it be redacted or blacked out. She did not do so.

43 . Respondent testified that she issued only three of

these certificates, which she referred to as Ð recommendation s . Ñ 1/

Ms. Clark, testified that during her employment from May 2015 to

April 2016, about 15 certificates were distributed to patients.

Ms. Clark testified that the certificates were kept in a folder

separate from the patient Ó s medical records. When Respondent

directed that a patient was to receive a certificate , Ms. Clark

would type in the patient Ó s name, patient ID, address and the

date issued . She would print it out, making no changes to the

allowed quantity, maximum allowance , or any other language in the

certificate. Ms. Clark Ó s testimony is credited.

44 . The certificate given to R.S. does not indicate that

R.S. would receive medical marijuana by extract oil, as noted in

Respondent Ó s medical records for R.S. n or does it include a route

of administration or planned duration for the substance

prescribed.

4 5 . The markings and appearance of the certificate are

consistent with what a reasonable person would expect to see on a

prescription. Here , R.S. did not expect that it would be filled

by a pharmacy. Instead, R.S. expected that it would be filled at

a di spensary authorized to dispense medical marijuana. At that

time, no such dispensary existed.

46 . The certificate was given to R.S. simultaneously with

the flyer for Cannabis Therapy Solutions . In her deposition,

Respondent stated that Joe and Sonja Sal mons came to her office

and said that they were able to grow a medical grade cannabis

with CBD, as well as a concentrated oil , and that they were

located in Pensacola. F rom the more persuasive evidence

presented it is found that the coupling of the certif icate with

the flyer for Cannabis Therapy Solutions w as intentional.

Respondent only stopped providing certificates to patients when

she learned that they could no longer obtain marijuana from t he

Pensacola dispensary.

47. It is also found that the cert ificate provided to R.S.

and described above is a prescription.

DOH Ó s Complaint and Investigation

48 . While Respondent returned all of R.S. Ó s money, he

nonetheless felt that Respondent Ó s actions were fraudulent . On

February 24, 2016, R.S. filed a complai nt with the Department,

and provided a copy of the certificate he received, as well as a

copy of the flyer from Cannabis Therapy Solutions.

49 . As a part of its investigation, the Department

requested that R.S. provide a copy of his medical records from

Respondent. R.S. wrote back, advising that when he requested his

records in March 2016, Ms. Clark provided him with the clinical

records he had brought with him from his oncologist on his first

visit, and advised him that Respondent did not do patient ca re

records on cash - pay patients.

50 . At hearing, Ms. Clark testified that Respondent uses

electronic medical records for insurance patients and handwritten

records for cash - pay ing patients. To her knowledge, cash - paying

patients never had electronic me dical records.

A. Respondent Ó s Medical Records for R.S.

51 . On April 11, 2016, the Department issued a subpoena to

Respondent, request ing all medical records for R.S. for a stated

time period. Respondent received the subpoena on April 13, 2016.

52 . The records that Respondent supplied in response to the

Department Ós subpoena include forms filled out by R.S., prior

medical records from R.S. Ó s oncologist , and electronic medical

records from Respondent Ó s office.

53 . Curiously, the office note for R.S. Ó s visit

September 28, 2015, visit is electronically signed by Respondent

on April 18, 2016. The record for the October 19, 2015, visit is

electronically signed April 19, 2016, and the record for the

January 15, 2016, visit is electronically signed by Resp ondent on

April 19, 2016.

54 . Also included with the medical records provided to the

Department is an Ð addendum Ñ that references an encounter date of

January 15, 2016. In the body of the note, Respondent references

R.S. Ó s visit to the office on Februar y 17, 2016, when he demanded

a refund of his money. Respondent described R.S. as having a

Ð violent attitude, Ñ and noted that he was asked to return the

Ð recommendation Ñ and refused to do so. This note was

electronically entered on April 19, 2016, and, si milar to the

other medical records from Respondent Ó s office, electronically

signed April 20, 2016, within a week after receiving the subpoena

from the Department and months after R.S. Ó s last visit to the

practice.

55 . Respondent is not charged with falsif ying medical

records. However, the evidence related to the electronic medical

records is relevant in assessing Respondent Ó s credibility with

respect to her claims that she completed a full examination of

R.S., ordered labs for him, and made several recomm endations for

alternative treatments that she claims he failed to follow.

56 . It is found that Respondent did not complete a full

examination for Respondent ; did not complete a review of systems ;

did not order labs for him to complete ; did not recommend the

alternative treatments, such as yoga, essential oils, or

meditation ; and did not recommend that he modify his diet.

B. The Advice u pon Which Respondent Allegedly Relied

57 . The certificate that Respondent provided to R.S., as

well as other patients , included a partial citation to Jenks v.

State , 582 So. 2d 676 (Fla. 1 st DCA 1991). Jenks stands for the

premise that the common law defense of medical necessity is still

recognized in Florida with respect to criminal prosecutions for

possession and use of marijuana where the following elements are

established: 1) that the defendant did not intentionally bring

about the circumstances which precipitated the unlawful act;

2) that the defendant could not accomplish the same objective

using a less offensive alternative available to the defendant;

and 3) that the evil sought to be avoided was more heinous than

the unlawful act perpetrated to avoid it. 582 So. 2d at 679.

58 . Respondent relies on the medical necessity defense as

justification for her issuance of the certificates , such as the

one R.S. received. However, the genesis of her reliance on this

defense remains a mystery.

59 . In Respondent Ó s written response to the Department Ó s

investigation, she does not mention seeking the advice of

counsel. Inste ad, she stated:

As soon as I open [sic] my practice, I had a

visit from a company in Pensacola, that

showed me some documents about the medical

necessity re gulation for medical marijuana

and how it was helping so many patients with

cancer. One of my patie nts with cancer, said

he was going to wait until it gets legalized

and died waiting. The second patient

requested the recommendation, and is in

remission as we speak.

60 . At hearing, however, Respondent testified that she

relied on the advice that she received from her lawyer, Billy - Joe

Hoot Crawford, about the applicability of the medical necessity

defense. Mr. Crawford is a criminal defense lawyer in the Panama

City area. His experience in representing individuals in the

professional license regulat ory area is scant, by his own

admission.

61 . Both Respondent and Mr. Crawford testi fied that they met

when attending a meeting of people who were working on medical

marijuana issues. Both testified that Mr. Crawford provided some

advice to Respondent re garding the medical necessity defense.

Both testified that Respondent did not pay for the advice. From

there, however, their testimony diverges.

62 . Mr. Crawford testified that he could not remember the

names of the people who attended the meetings , ot her than

Dr. Skidmore. Despite his inability to remember their names, he

believed that the group had people in each field necessary to Ð set

up business Ñ should medical marijuana become legal . He believed

that there were a couple of meetings before Respon dent attended

one, but once she did, he met with her i n conjunction with the

meetings. Mr. Crawford testified that he met with Respondent

approximately a dozen times. He said that their discussions were

most likely after the meetings, because to discuss issues related

to her patients in front of others would not be appropriate .

63 . Respondent testified that she met with Mr. Crawford once

a t a meeting of people discussing the legalization of marijuana,

and that he gave her advice in the meeting itself. Her ex - husband

also spoke to him on the phone once , to ask for some clarification

regarding his advice .

64 . Mr. Crawford also testified that he traveled to Orlando

to speak to a physician (unnamed) , who was recommending marijuana

to her patients, and g ot a copy of what she was using to bring

back and provide to Respondent. Respondent testified that she

wrote down Ð word for word Ñ what he had told her that she needed to

include in the recommendation and soon thereafter stated that he

gave her a sample to use that was not on security paper.

65 . Respondent claims that the reference to Green L ife

Medical Systems (GreenLife) was on the sample she received from

Mr. Crawford, and that she did not know what Green L ife was.

Mr. Crawford testified that while he k new about Green L ife before

giving Respondent advice, he did not have a reference to Green L ife

on the recommendation he provided .

66 . Most importantly, Mr. Crawford testified that he advised

Respondent that she needed to tell her patients that they could be

arrested if they were caught with medical marijuana and that he

fully expected them to be. He also advised her that if any of her

patients were arrested for possessing marijuana pursuant to her

recommendation, then he would represent them for free.

67 . Respondent, however, did not remember the conversation

that way. She stated, Ð in my mind, I remember he said, if, not

when. Ò If Ó was if they get in trouble, we give them free legal

help. Ñ She did not advise R.S. that he could be arrested, and

when as ked at hearing whether it concerned her that her patients

might be arrested from what she was doing, her response was, Ð Yes.

But life goes first in my priority algorithm. Ñ She repeated this

theme, saying, Ð my algorithm of priority, health and life go on

top. On top of money. I Ó m sorry, but on top of law. Ñ Indeed,

she confessed that she did not read all of the Jenks case, because

she found it boring.

68. What is clear from the evidence is that , while

Mr. Crawford provided some advice to Respondent reg arding the

medical necessity defense, he did not provide any advice

concerning the impact her actions could have on her license to

practice medicine. Equally clear is that Respondent did not seek

that advice. 2 /

69 . Respondent Ó s contention that she accep ted Mr. Crawford Ó s

advice without question and did not concern herself with the

technicalities i s not credible. At deposition, Respondent was

questioned about her blog posts, media interviews, and Facebook

posts. What emerges from these documents and fro m her testimony

is a woman who was quite aware of the status of medical marijuana,

both in Florida and elsewhere. In fact, a blog she wrote in

October 2014 details the requirements of the regulatory scheme for

ordering low - THC marijuana. The blog include s the statement,

Ð [a ] ll physicians that plan to prescribe medical marijuana are

required to keep strict documentation of all prescriptions and

treatment plans and submit them quarterly to the University of

Florida College of Pharmacy to maintain proper con trol. Ñ The

reality is that she knew the regulatory scheme to order medical

marijuana , with all of its technicalities. She simply chose not

to wait for the new law to be implemented.

70 . A ssuming that Respondent truly believed that the medical

necessity defense outlined in Jenks would protect her patients,

she did not act to satisfy the three elements required for the

defense. First, while the medical necessity defense might protect

her patients if arrested , nothing in Jenks negates the regulatory

schem e in chapters 456 and 458, or addresses a physician Ó s ability

to prescribe medical marijuana. Second, the evidence indicated

that R.S. did not follow through with the recommendations that

Respondent claimed would benefit him before providing him with the

prescription for medical marijuana. Under these circumstances,

ordering medical marijuana would not be the last resort

contemplated under Jenks .

71. Most disturbing is the fact that a patient was required

to pay $250 for a Ð recommendation Ñ that the pati ent obtain a

substance that could not be legally provided, with no assurance

that he or she would receive anything to address their suffering.

While Respondent claimed repeatedly that her goal was to help

people, charging for this Ð recommendation Ñ looks m ore like

exploiting the hopes of those who are desperate for relief for

Respondent Ó s financial gain, and providing nothing to actually

ease her patients Ó pain.

C. Respondent Ó s Practice Address

72 . Respondent Ó s address of record, and primary practice

add ress on file with the Department between August 11, 2014 , and

August 19, 2017, was 756 Harrison Avenue, Panama City, Florida

32401.

73 . Between June 2016 and August 2016, Respondent relocated

her practice to 105 Jazz Drive, Panama City, Florida 32405. The

Department did not send a warning letter to Respondent regarding

her address update. However, section 456.035 states that it is

Respondent Ó s responsibility, not the Department Ó s , to e nsure that

her practice address on file with the Department is up - to - date.

This is especially so where a physician Ó s eligibility to practice

is predicated on practicing in an area designated as an ACN .

74. Section 456.042 requires that practitioner profiles,

which would include a physician Ó s practice location, must be

up dated within 15 days of the change. This requirement is

specifically referenced in bold type on license renewal notices,

including notices filled out by Respondent in 2012, 2014, and

201 6 , and included in her licensure file.

75. On May 22, 2013, Respon dent sought and received

approval for Gulf Coast to be a designated ACN facility at

756 Harrison Avenue, in Panama City, Florida. On May 16, 2016,

she sought and received approval for Gulf Coast to be a

designated ACN facility at 105 Jazz Drive, also in P anama City.

This approval however, is for the entity, not an individual

licensee , and does not automatically update an individual

licensee Ó s primary practice address .

76. Between August 11, 2014, and August 19, 2017,

Respondent Ó s address of record and primary practice address on

file with the Department was 756 Harrison Avenue, Panama City,

Florida 32401. Sometime between June and August 2016, Respondent

relocated her practice to 105 Jazz Drive, Panama City, Florida.

77. Respondent did not update her practitioner profile with

the practice address at 105 Jazz Drive. That address never

appeared as her primary practice location in her practitioner

profile.

78. When Andre Moore, the Department investigator assigned

to investigate R.S. Ó s complaint, went t o interview Respondent, he

went to her address of record, which was the Harrison Avenue

address. When he arrived, he found a sign on the door stating

that the practice had moved to 105 Jazz Drive. Mr. Moore went to

the Jazz Drive location and interviewed Respondent there. At

that time, Mr. Moore told Respondent that she needed to update

her address.

7 9 . Normally, physicians can update their practice location

address online using the Department Ó s web - based system.

Physicians who hold an ACN license, how ever, must update their

addresses in writing because verification th at the new practice

address qualifies as an ACN is required before an ACN can

practice in the new location. All licensees, including

Respondent, can update their mailing address online.

8 0 . Respondent had completed updates of her practice

address before by sending a letter and a fax , so she was familiar

with the process. The Department Ó s internal licensure database

does not show any attempts made by Respondent between June and

August 201 6 to access the web - based system or otherwise update

her practice address to 105 Jazz Drive . A search of the

Department Ó s licensure information on Respondent, viewing every

address change request, indicates that she did not update either

her mailing addre ss or her practice location address to list

105 Jazz Drive.

8 1 . On or about August 19, 2017, Respondent updated her

mailing address online to 219 Forest Park Circle, Panama City,

Florida 3240 5 . The Department received a request from Respondent

by mail on or about September 5, 2017, to update her practice

location to the Forest Park Circle address.

82. Respondent claims that she tried multiple times to

update her address with no success, and when she called the

Department, she was told by an unidentified male to just wait and

update her address when she renewed her license. This claim is

clearly contradicted by Florida law and by multiple notices for

renewal that Respondent had received and returned previously. It

is found that Respondent did not update her practice address as

required with respect to the 105 Jazz Drive address.

CONCLUSIONS OF LAW

83 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action pursuant to section 120.57(1), Florida Stat utes (2017).

84. This is a proceeding whereby the Department seeks to

revoke Respondent Ó s license to practice medicine. The Department

has the burden to prove the allegations in the Administrative

Complaint by clear and convincing evidence. Dep Ó t of Ba nking &

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

Ferris v. Turlington , 5 10 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 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 convic tion,

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 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. ,

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

85. Moreover, disciplinary provisions , such as s ections

456.072 and 458.331 , must be strictly construed in favor of the

licensee. Elmariah v. Dep Ó t of Prof Ó l Reg . , 574 So. 2d 164 (Fla.

1st DCA 1990); Taylor v. Dep Ó t of Prof Ó l Reg . , 534 So. 782, 784

(Fla. 1st DCA 1988).

86. Before addressing the specific charges in the

Administrative Complaint, R espondent Ó s global defense that she

was entitled to rely on counsel Ó s advice regarding the medical

necessity defense must be addressed. First, while Respondent did

receive advice regarding the medical necessity defense and its

application to both her and her patients should they be charged

with a crime, no evidence was presented to establish that she

sought or received any advice regarding the potential impact on

her license and whether the medical necessity defense would be

recognized in that regulatory s tructure.

87. As noted in the Findings of Fact, the medical necessity

defense is a defense to be used in a criminal proceeding. It

does not apply in a license disciplinary proceeding. Even

assuming its applicability, the elements have not been

establish ed in this case. Here, Respondent intentionally created

the circumstances that precipitated the unlawful act, by seeing

patients knowing that their goal was to receive a prescription

for an unlawful substance. She could have treated those patients

with l awful alternatives, ones that she claimed she recommended,

but prescribed medical marijuana knowing that these other

alternatives had not been pursued.

88. Respondent cites several other cases in support of her

claims of medical necessity and a physician Ó s First Amendment

right to recommend marijuana to her patients. Sowell v. State ,

738 So. 2d 333 (Fla. 1 st DCA 1998) , cert. discharged , 734 So. 2d

421 ( Fla. 1999), also involved the application of the medical

necessity defense, and simply holds that a defe ndant in a

criminal proceeding charged with cultivating marijuana should

have been able to present the defense. 3 / It has no application

here.

89. Respondent also cites to Conant v. Walters , 309 F.3d

629 (9 th Cir. 2002), for the premise that the Board of Medicine

may not abridge Respondent Ó s First Amendment rights to speak to

her patients about the benefits of medical marijuana. Conant

addresses a federal injunction issued by the Ninth Circuit that

enjoined the enforcement of professional licensure procee dings

where the sole basis for the government Ó s action wa s the

physician Ó s professional Ð recommendation Ñ of the use of medical

marijuana. The Ninth Circuit specifically stated that the

injunction was not intended to limit the government Ó s ability to

inves tigate doctors who aid and abet the actual distribution and

possession of marijuana. The focus of the case was on the

government Ó s ability to prosecute a physician for communicating a

sincerely held medical judgment that involved the use of

marijuana. In this case, none of the charges against Respondent

seek to punish her for discussing the possible benefits of

medical marijuana. Each of the charges, discussed individually

below, requires more than expression of opinion , or counseling ,

on the possible be nefits of medical marijuana use . Conant does

not apply to bar the prosecution in this proceeding.

90. Count s I , II, and III of the Administrative Complaint

charged Respondent with violating section 458.331(1)(v), (q),

and (k), respectively. Section 458. 331(1) states , in pertinent

part :

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456 .072(2):

* * *

(k) Making deceptive, untrue, or fraudulent

representations in or related to the practi ce

of medicine or employing a trick or scheme in

the practice of medicine.

* * *

(q) Prescribing, dispensing, administering,

mixing, or otherwise preparing a legend drug,

including any controlled substance, other

than in the course of the physician Ó s

professional practice. For the purposes of

this paragraph, it shall be le gally presumed

that prescribing, dispensing, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

ina ppropriate quantities is not in the best

interest of the patient and is not in the

course of the physician Ó s professional

practice, without regard to his or her

intent.

* * *

(v) Practicing or offering to practice

beyond the scope permitted by law o r

accepting and performing professional

responsibilities which the licensee knows or

has reason to know that he or she is not

competent to perform.

91. With respect to Count I, the Department alleged that

Respondent violated section 458.331(1)(v) by : a) providing a

prescription for cannabis to R.S., and/or b) offering R.S. the

opportunity to obtain cannabis.

92. Respondent argues that she cannot be found guilty of

Count I because the document that she provided to R.S., which she

refers to as a certi ficate or a recommendation, does not qualify

as a prescription as defined in section 465.003(14) , Florida

Statutes , which provides in part:

Ð Prescription Ñ include s any order for drugs

or medicinal supplies written or transmitted

by any means of communicati on by a duly

licensed practitioner authorized by the laws

of the state to pres cribe such drugs or

medicinal supplies and intended to be

dispensed by a pharmacist.

93. It is noted that the definition uses the word

Ð includes, Ñ and does not, on its face, p rovide that all

prescriptions must include every element listed. It does not

state that all prescriptions must be as described. Section

465.003 uses the term Ð means Ñ in 17 out of the 20 definitions

listed, as opposed to the term Ð includes Ñ used in the re maining

three definitions. Moreover, section 465.003 limits the scope of

the definitions provided by the phrase Ð as used in this chapter . Ñ

T he reference to a prescription being dispensed by a pharmacist in

section 465.003(14) makes perfect sense, conside ring that chapter

465 governs the practice of pharmacy.

94. T he Administrative Complaint does not reference

chapter 465, and this case does not address the regulation of

pharmacists. Had the Legislature intended the definition in

section 465.003 to a pply to provisions involving all health care

professionals, it could have included the definition in section

456.001. It did not do so.

95. The document that Respondent provided to patients, which

she referred to as a certificate, had all of the tradit ional

markings of a prescription. It included her name, medical license

number, and DEA number ; the accepted abbreviation for the word

prescription; the drug to be prescribed and the dosage to be

dispensed; a place to indicate the number of refills to be

permitted ; a place for the physician Ó s signature ; and the phrase,

Ð to insure brand name dispensing, prescriber must write medically

necessary on the prescription. Ñ Any person receiving the

certificate would reasonably believe that he or she had been given

a prescription.

9 6 . Moreover, it is noted that when R.S. called the office

initially, he told the receptionist that he had heard that

Respondent could provide a prescription for medical marijuana; the

information that led him to her office was that she would

prescribe it; and while R.S. knew that he could not go to a

pharmacy to fill it, he referred to the certificate as a

prescription. As R.S., a retired physician assistant, stated, it

looked like a prescription to him, just not on a prescription pad.

The Department has demonstrated by clear and convincing evidence

that the certificate was created to look like a prescription, and

is a prescription.

9 7 . Respondent provided this prescription at a time when she

knew that it was not lawful to do so, and by so doing, practiced

beyond the scope permitted by law. Count I has been established

by clear and convincing evidence.

9 8 . Even if it were found that the certificate which

Respondent provided is not a prescription, the Department

demonstrated by clea r and convincing evidence that Respondent

offered R.S. the opportunity to obtain cannabis. She led him to

believe that the certification that she provided could be taken to

a dispensary and filled . She provided what R.S. was led to

believe was a necessar y component to obtaining medical marijuana,

along with directions for reaching a dispensary to fill the

prescription. Thus, the Department has proven Count I by clear

and convincing evidence.

9 9 . Count II charges Respondent with violating section

458.33 1(1)(q), which prohibits prescribing a legend drug,

including a controlled substance, other than in the course of the

physician Ó s professional practice. Section 458. 331(1)(q) contains

a presumption that Ð it shall be legally presumed that prescribing

contr olled substances inappropriately or in excessive or

inappropriate quantities is not in the course of the physician Ó s

professional practice, without regard to his or her intent. Ñ

100 . Here, Respondent provided a prescription to R.S. at a

time when she k new that she had not taken the course to become an

authorized ordering physician, and at a time when she knew that

medical marijuana could not lawfully be ordered in Florida in any

form. To prescribe medical marijuana under these circumstances

was inappro priate. The Department has proven that Respondent

violated section 458.331(1)(q) by clear and convincing evidence.

10 1 . Count III charges Respondent with violating section

458.331(1)(k), which prohibits making deceptive, untrue, or

fraudulent representa tions in or related to the practice of

medicine or employing a trick or scheme in the practice of

medicine.

10 2 . The Administrative Complaint alleges that Respondent

violated section 458.331 (1)(k) by: 1) representing to R.S. that

she could provide a la wful prescription for cannabis to him;

2 ) providing a prescription for cannabis to R.S.; 3 ) offering R.S.

the opportunity to obtain cannabis; and/or 4 ) employing a trick or

scheme to gain financially from providing R.S. an unlawful

prescription for cannabi s.

10 3 . The Department proved the allegations in Count III by

clear and convincing evidence. Respondent made representations to

R.S. , in response to his request for a cannabis prescription, that

the state required that he see her three times over a 90 - day

period for a condition that the state recognizes for the need of

medical marijuana. Such a statement clearly implies that she

could provide a lawful prescription to R.S., and she provided such

a prescription, albeit unlawfully. Respondent also offer ed the

opportunity to obtain cannabis, by providing not only the

prescription, but the flyer advertising a means by which to have

the prescription filled. Finally, Respondent profited from

requiring patients to see her three times, and then charging an

ad ditional $250 for the certificate itself. The fact that R.S.

was refunded his money is irrelevant: he received his refund only

after becoming disruptive in her office and threatening to report

her to the Board of Medicine. It was clearly her intention t o

charge patients for what was essentially a meaningless piece of

paper. The Department has proven Count III by clear and

convincing evidence.

10 4 . Counts IV and V charge Respondent with violating

sections 456.072( 1)(a) and (n), respectively. Section 4 56.072(1)

provides , in pertinent part:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

(a) Making misleading, deceptive, or

fraudulent representations in or related to

the pract ice of the licensee Ó s profession.

* * *

( n ) Exercising influence on a patient or

client for the purpose of financial gain of

the licensee or a third party.

105. The factual basis alleged for violating section

456.072(1)(a) are the same as the fir st three bases alleged in

Count III with respect to section 458.331(1)(k), and discussed

above. For the reasons already discussed, the Department has

proven Count IV by clear and convincing evidence. Because the

factual basis supporting the allegation is virtually identical to

Count III, Count IV will not receive additional consideration in

terms of determining the appropriate penalty .

106. Count V alleges that Respondent exercised undue

influence for the purpose of financial gain by providing an

unlawf ul prescription for cannabis for remuneration. The

Department proved Count V by clear convincing evidence.

107. Count VI charges a violation of section 348.331(1)(g),

by failing to perform a statutory or legal obligation placed upon

a licensed physici an. In support of this allegation, the

Administrative Complaint states:

46. At the time Respondent issued the

prescription to Patient R.S., Section

381.986, Florida Statutes (2015) , controlled

the regulation of cannabis or marijuana for

medical purposes in the State of Florida.

47. Respondent violated Section

458.331(1)(g) , Florida Statutes (2015), by

violating Section 381.986, Florida Statutes

(2015), in one or more of the following ways:

a. By failing to submit a lawful order

for Ð Low - THC cannabis Ñ t o Patient R.S.;

b. By failing to complete an 8 hour

course and subsequent examination offered by

the Florida Medical Association or the

Florida Osteopathic Medical Association prior

to prescribing cannabis to Patient R.S.;

c. By failing to be authorize d or

qualified to order Ð Low - THC cannabis Ñ or any

other type of cannabis in the state of

Florida , at the time she prescribed cannabis

to Patient R.S.;

d. By failing to register as the

ordering licensee for Patient R.S. in the

compassionate use registry maintained by the

Department; and/or

e. By failing to include a route of

administration or planned duration for the

substance she prescribed to Patient R.S.

108. The Department proved the allegations in Count VI, with

respect to paragraph b. There wa s no obligation for Respondent to

prescr ibe any form of cannabis at all, and at the time these

events took place, it was not possible to do so. While she could

have, and should have, taken the required course work at the time

she prescribed to R.S., she c ould not lawfully register as an

ordering physician until July 2016, several months after R.S. saw

her.

109. Finally, Count VII charges Respondent with violating

section 456.072(1)(w), for f a iling to timely update her Department

practitioner profile wi th her primary practice address. This

c ount has been demonstrated by clear and convincing evidence.

110. The Board of Medicine has adopted disciplinary

guidelines to provide notice to practitioners and the public alike

of the penalties typically imposed for violations of sections

456.072 and 458.331. Fla. Admin. Code R. 64B8 - 8.001 (effective

January 1, 2015) . The rule also provides aggravating and

mitigating factors to be considered should an administrative law

judge recommend a penalty outside the gui delines. The testimony

of the three patients who testified in mitigation at hearing has

been considered , as well.

111. The undersigned has reviewed the disciplinary

guidelines and has not applied any aggravating or mitigating

factors, because the recomme nded penalty is within the

permissible range of penalties identified in the guidelines.

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 Respondent gu ilty of violating sections

456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and

(v), Florida Statutes (2015). It is further recommended that

Respondent Ó s license be revoked.

DONE AND ENTERED this 30 th day of April , 2018 , in

Tallahassee, Leon Coun ty, 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

Filed with the Clerk of the

Division of Administrative Hearings

this 30 th day of April , 2018 .

ENDNOTE S

1/ This Ð recommendation Ñ cost R.S. $250 in addition to the cost

of his office visit. One has to wonder why Respondent thought

the Ð rec ommendation Ñ warranted an additional charge , and whether

she would use the same rationale to justify a charge to recommend

that a patient do things like, bedrest, eat less, exercise more,

drink less caffeine, and the like. Clearly, such a practice

would b e unacceptable.

2/ It is noted that the United States Supreme Court has taken a

contrary view on the federal level . See United States v. Oakland

Cannabis Buyers Ó Coop. , 532 U.S. 483 (2001), in which the Court

held that a medical necessity exception f or marijuana is at odds

with the terms o f the Controlled Substances Act, stating that

while the statute does not explicitly abrogate the defense, its

provisions leave no doubt that the defense is unavailable.

532 U.S. at 491.

3/ In the lawyer discipline arena, counsel who gave similar

advice to clients and provided them with an Ð Official Legal

Certification Ñ purportedly authorizing them to grow and use

marijuana, without adequately advising that the doctrine of

medical necessity is an affirmative defense that does not come

into play until after the client is arrested, charged , and

prosecuted, was recently disbarred. The Florida Bar v.

Christenson , 233 So. 1019 (Fla. 2018).

COPIES FURNISHED:

Louise Wilhite - St Laurent, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Alvin Lee Peters, Esquire

Peters & Scoon Attorneys at Law

25 East 8th Street

Panama City, Florida 32401

(eServed)

Ross Daniel Vickers, Esquire

Department of Health

4052 Bald Cypress W ay , 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, JD, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way , Bin C - 03

Tallahassee, Florida 32399 - 32 53

(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.