89-003670
Board Of Medicine vs.
William S. Piper, Sr.
Status: Closed
Recommended Order on Friday, December 22, 1989.
Recommended Order on Friday, December 22, 1989.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF PROFESSIONAL )
12REGULATION, BOARD OF MEDICINE, )
17)
18Petitioner, )
20vs. ) CASE NO. 89-3670
25)
26WILLIAM S. PIPER, SR., M.D., )
32)
33Respondent. )
35________________________________)
36RECOMMENDED ORDER
38Pursuant to notice, the Division of Administrative Hearings, by its duly
49designated Hearing Officer, Claude B. Arrington, held a formal hearing in the
61above-styled case on November 17, 1989, in Miami, Florida.
70APPEARANCES
71For Petitioner: Andrea Bateman, Esquire
76Senior Attorney
78Department of professional
81Regulation
821940 North Monroe Street, Suite 60
88Tallahassee, Florida 32399-0750
91For Respondent: No Appearance
95STATEMENT OF THE ISSUES
99Whether Respondent committed the offenses alleged in the Administrative
108Complaint and, if so, the penalties that should be imposed, against his license
121to practice medicine in the State of Florida.
129PRELIMINARY STATEMENT
131On April 6, 1989, Petitioner filed an Administrative complaint containing
141five counts against Respondent, a doctor whose license to practice medicine in
153the State of Florida has been on inactive status since shortly after his
166retirement in 1984.
169The Administrative Complaint alleges that Respondent authorized a
177prescription for himself for one controlled substance and that he wrote a second
190prescription for himself for another controlled substance. The Administrative
199Complaint further alleges that these events occurred in the State of North
211Carolina and that Respondent was not licensed to practice medicine in the State
224of North Carolina.
227Count I of the Administrative Complaint charges Respondent with having
237practiced or having offered to practice beyond the scope permitted by law in
250violation of Section 458.331(1)(v), Florida Statutes.
256Count II of the Administrative complaint charges Respondent with having
266failed to perform a statutory or legal obligation in violation of Section
278458.331(1)(g) , Florida Statutes, by failing to obtain authorization from the
288Drug Enforcement Agency prior to issuing prescriptions for controlled substances
298as required by federal law.
303Count III of the Administrative complaint charges Respondent with having
313violated the provisions of Section 458.331(1)(x), Florida Statutes, by having
323failed to advise Petitioner that he could be practicing medicine in North
335Carolina as required by Section 458.319(5), Florida statutes.
343Count IV of the Administrative Complaint charges Respondent with
352prescribing controlled substances to himself in violation of Section
361458.331(1)(r), Florida Statutes.
364Count V of the Administrative Complaint charges Respondent with prescribing
374controlled substances other than in the course of his professional practice in
386violation of Section 458.331(1)(q), Florida Statutes.
392The Election of Rights form executed by Respondent indicated that he did
404not dispute the allegations of fact contained in the Administrative Complaint
415and that he waived his right to a formal hearing. However, a letter attached to
430the Election of Rights form disputed the factual allegations of the
441Administrative Complaint. This proceeding followed the filing of the letter.
451Respondent did not appear and he was not represented at the formal hearing.
464At the formal hearing, Petitioner presented three documentary exhibits and
474received authorization to submit a late-filed exhibit. Petitioner's Exhibit 1
484is a composite exhibit consisting of Respondent's answers to Petitioner's
494discovery document entitled Petitioner's First Set of Request for Admissions,
504Request for Production of Documents and Interrogatories to Respondent.
513Petitioner's Exhibit 2 is the deposition of L.D. Beaver, an investigator with
525the North Carolina Board of Medical Examiners. Petitioner's Exhibit 3 is a
537composite exhibit consisting of photostatic copies of the two prescriptions
547involved in this proceeding. The late-filed exhibit was the deposition of
558Kenneth Leon Murphy, a pharmacist in North Carolina. All exhibits, including
569the late-filed exhibit, were accepted into evidence. No witnesses or other
580exhibits were presented.
583A transcript of the proceedings has been filed. Rulings on the
594Petitioner's proposed findings are in the appendix to this recommended order.
605Respondent did not file a post-hearing submittal.
612FINDINGS OF FACT
6151. At all times pertinent to this proceeding, Respondent was licensed to
627practice medicine in the State of Florida, having been issued license number ME
6400003174. Respondent, who was first licensed to practice medicine in the State
652of Florida in 1946, retired in 1984 and his license was soon thereafter placed
666on an inactive status.
6702. Respondent is registered with the Drug Enforcement Agency, DEA # AP
6820114087, authorizing Respondent to issue controlled substances in Coral Gables,
692Florida.
6933. In June 1987, Respondent resided in or near Franklin, North Carolina.
705Respondent is not licensed to practice medicine in the State of North Carolina,
718and he is not authorized to issue controlled substances in the State of North
732Carolina.
7334. On or about June 8, 1987, Respondent authorized Kenneth Leon Murphy, a
746pharmacist who at that time worked at the Revco Pharmacy in Franklin, North
759Carolina, to fill a prescription for acetaminophen with codeine and to dispense
771the same to Respondent. Codeine is a controlled substance as defined by the
784provisions of Chapter 893, Florida Statutes. This prescription was filled on
795June 8, 1987, by the Revco Pharmacy in Franklin, North Carolina and picked up by
810Respondent that same day.
8145. On June 11, 1987, Respondent wrote a prescription for chloral0 hydrate
826to be dispensed to himself. Respondent listed his Drug Enforcement Agency
837number on the prescription. Respondent had the prescription filled by Mr.
848Murphy at the Revco Pharmacy in Franklin, North Carolina where he personally
860picked up the prescription. Chloral hydrate is a controlled substance as
871defined by the provisions of Chapter 893, Florida Statutes.
880CONCLUSIONS OF LAW
8836. The Division of Administrative Hearings has jurisdiction over the
893subject matter of and the parties to this proceeding. Section 120.57(1),
904Florida Statutes
9067. Section 458.331(1), Florida Statutes, which relates to the discipline
916of medical doctors, provides, in pertinent part, as follows:
925(1) The following acts shall
930constitute grounds for which the
935disciplinary actions specified in
939subsection (2) may be taken:
944* * *
947(g) Failing to perform any statutory
953or legal obligation placed upon a
959licensed physician.
961* * *
964(q) Prescribing, dispensing,
967administering, mixing, or otherwise
971preparing a legend drug, including any
977controlled substance, other than in the
983course of the physician's professional
988practice. For the purposes of this
994paragraph, it shall be legally presumed
1000that prescribing, dispensing,
1003administering, mixing, or otherwise
1007preparing legend drugs, including all
1012controlled substances, inappropriately
1015... is not in the course of the
1023physician's professional practice,
1026without regard to intent.
1030(r) Prescribing, dispensing, or
1034administering any medicinal drug
1038appearing on any schedule set forth in
1045chapter 893 by the physician to himself,
1052. . .
1055* * *
1058(v) Practicing or offering to
1063practice beyond the scope permitted by
1069law ...
1071* * *
1074(x) Violating any provision of this
1080chapter ...
10828. Petitioner has the burden of proving by clear and convincing evidence
1094the allegations against Respondent. See Ferris v. Turlington, 510 So.2d 292
1105(Fla. 1987).
11079. Petitioner established by clear and convincing evidence that Respondent
1117violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged
1127in Count I of the Administrative Complaint. By writing the prescriptions for
1139the two controlled substances in a jurisdiction for which he had no license to
1153practice, Respondent engaged in the practice of medicine beyond the scope of his
1166licensure. The prescription of medicine for any human pain or disease
1177constitutes the practice of medicine as that term is defined by Section
1189458.305(3), Florida Statutes.
119210. Petitioner did not establish that Respondent failed to perform any
1203statutory or legal obligation within the meaning of Section 458.331(1)(g),
1213Florida Statutes, as alleged in Count II of the Administrative Complaint.
1224Although Petitioner established that Respondent was not licensed to practice
1234medicine in North Carolina, there was no showing as to the requirements of
1247either federal or North Carolina law in regaids to the writing of prescriptions
1260for controlled substances in the State of North Carolina.
126911. Petitioner failed to establish that Respondent was required to comply
1280with the provisions of Section 458.319(5), Florida Statutes. That provision
1290requires a licensee to notify Petitioner of a change in the address of the
1304licensee's primary place of practice. There was no showing that Respondent had
1316changed or that he intended to change his primary place of practice to North
1330Carolina. Consequently, Petitioner failed to establish that Respondent violated
1339the provisions of Section 458.331(1)(x), Florida Statutes, as alleged in Count
1350III of the Administrative Complaint.
135512. Petitioner established by clear and convincing evidence that
1364Respondent violated the provisions of Section 458.331(1)(r), Florida Statutes,
1373by authorizing for himself the prescription containing codeine and by writing
1384for himself the prescription for chloral hydrate.
139113. Petitioner established by clear and convincing evidence that
1400Respondent violated the provisions of Section 458.331(1)(q), Florida Statutes,
1409by authorizing for himself the prescription containing codeine and by writing
1420for himself the prescription for chloral hydrate outside the course of his
1432professional practice.
143414. The provisions of Section 458.331(2) , Florida Statutes, provide, in
1444pertinent part, as follows:
1448(2) When the board finds any person
1455guilty of any of the grounds set forth
1463in subsection (1), it may enter an order
1471imposing one or more of the following
1478penalties:
1479* * *
1482(b) Revocation or suspension of a
1488license.
1489(c) Restriction of practiced.
1493(d) Imposition of an administrative
1498fine not to exceed $5,000 for each count
1507or separate offense.
1510(e) Issuance of a reprimand.
1515(f) Placement of the physician on
1521probation for a period of time and
1528subject to such conditions as the board
1535may specify. . .
153915. The disciplinary guidelines found in Rule 21M-17.015, Florida
1548Administrative Code, pertinent to this case, provides as the recommended penalty
1559for a violation of Section 458.331(1)(q),(r), or (v), Florida Statutes, a range
1572of from one year probation to revocation of licensure and an administrative fine
1585from $50 to $1,000. The provisions of Rule 21M-17.015(3), Florida
1596Administrative Code, permit Petitioner to deviate from the recommended penalties
1606upon the consideration of mitigating factors.
161216. In recommending the penalty to be imposed in this case, it is
1625appropriate to consider as mitigating factors that Respondent has been licensed
1636to practice medicine in Florida since 1946, that he has been retired since 1984,
1650and that his license to practice medicine in Florida is on an inactive status.
1664There was no evidence that Respondent had been previously disciplined by
1675Petitioner or that these were anything other than isolated incidents.
1685RECOMMENDATION
1686Based on the foregoing findings of fact and conclusions of law, it is
1699RECOMMENDED that the Department of Professional Regulation, Board of Medicine,
1709enter a final order which finds that Respondent violated the provisions of
1721Section 458.331(1)(q),(r), and (v), Florida Statutes, which reprimands
1730Respondent for these violations, and which places Respondent's licensure on
1740probation for a period of one year. It is recommended that no administrative
1753fine be imposed in consideration of the mitigating factors presented by this
1765case.
1766DONE AND ENTERED this 22nd day of December, 1989, in Tallahassee, Leon
1778County, Florida.
1780_________________________________
1781CLAUDE B. ARRINGTON
1784Hearing Officer
1786The DeSoto Building
17891230 Apalachee Parkway
1792Tallahassee, Florida 32399-1550
1795904/488-9675
1796Filed with the Clerk of the
1802Division of Administrative Hearings
1806this 22nd day of December, 1989.
1812APPENDIX TO THE RECOMMENDED
1816ORDER IN CASE NO. 3670
1821The proposed finding contained in paragraph ten of the Petitioner's
1831proposed recommended order that Respondent's license is delinquent is rejected
1841as being unsubstantiated by the evidence. The remaining proposed findings of
1852fact submitted on behalf of Petitioner are adopted in material part by the
1865Recommended Order.
1867COPIES FURNISHED:
1869Andrea Bateman, Senior Attorney
1873Department of Professional Regulation
18771940 North Monroe Street
1881Tallahassee, Florida 32399-0792
1884William S. Piper, Sr., M.D.
18891019 Malaga Avenue
1892Coral Gables, Florida 33134
1896Dorothy Faircloth
1898Executive Director
1900Department of Professional
1903Regulation
19041940 North Monroe Street
1908Tallahassee, Florida 32399-0792
1911Kenneth B. Basley
1914General Counsel
1916Department of Professional
1919Regulation
19201940 North Monroe Street
1924Tallahassee, Florida 32399-0792
Case Information
- Judge:
- CLAUDE B. ARRINGTON
- Date Filed:
- 07/07/1989
- Date Assignment:
- 07/14/1989
- Last Docket Entry:
- 12/22/1989
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO