Rush v. Department of Professional Regulation, Bd. of Podiatry, AT-257

• Decision Date: 22 March 1984
• Docket Number: No. AT-257,AT-257
• Citation: 448 So.2d 26
• Parties: Michael RUSH, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PODIATRY, Appellee.
• Court: Florida District Court of Appeals

Page 26

448 So.2d 26

Michael RUSH, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PODIATRY, Appellee.

No. AT-257.

District Court of Appeal of Florida,

First District.

March 22, 1984.

Barry Richard of Roberts, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellant.

Bruce D. Lamb, Staff Atty., Tallahassee, for appellee.

BOOTH, Judge.

This appeal arises from a final order of the Board of Podiatry suspending appellant's license to practice for six months and placing appellant on probation for three years. The Board's action was taken pursuant to Section 461.013(1)(c), Florida Statutes (1981), which cites as grounds for disciplinary action:

(c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of podiatry or the ability to practice podiatry. ¹

The appellant was convicted in federal court of conspiracy to possess and import marijuana in violation of Title 21, United States Code (1981), Section 841(a)(1). Dr. Rush's involvement in this conspiracy consisted of furnishing money to individuals who subsequently utilized the funds to purchase marijuana. The conviction was affirmed by the United States Court of Appeals. United States v. Rush, 666 F.2d 10 (2d Cir.1981).

Also enacted in 1979 was Section 461.001, Florida Statutes, entitled "Legislative findings; intent; scope," which provides in part:

The sole legislative purpose for enacting this chapter is to insure that every podiatrist practicing in this state meet minimum requirements for safe practice. It is the legislative intent that podiatrists who fall below minimum competence or who otherwise present a danger to the public health be prohibited from practicing in this state. [emphasis added]

In determining whether Dr. Rush's conviction for conspiracy to import marijuana is directly related to the practice or ability to practice podiatry, we are mindful that where statutes provide for revocation or suspension of licenses, these provisions should be strictly construed and followed because the statute is penal rather than regulatory in nature. State v. Pattishall, 99 Fla. 296, 126 So. 147 (Fla.1930). Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). A statute designed to protect the general welfare is to be liberally construed to advance that purpose, but this does not justify a construction which would include conduct not clearly proscribed by the statute or a construction which would deny the licensee the right to know in advance what conduct is proscribed by reading the language of the statute. Lester v. Department of Professional and Occupational Regulation, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977).

A podiatrist is one of six categories of licensed professionals allowed to prescribe, administer, and dispense controlled substances by the State of Florida. Section 893.02(14), Florida Statutes (1981). The Legislature has invested a trust and confidence in these six categories of licensees by permitting them to dispense drugs which have a high potential for abuse. The actions of Dr. Rush, which culminated in his conviction, constitute a breach of that trust and confidence which the people, through the Legislature, have placed in him. Dr. Rush's conduct shows a lack of honesty, integrity, and judgment, and an unwillingness to abide by the Laws of the State of Florida which cannot be tolerated of a professional licensed to dispense dangerous drugs.

The importation of marijuana, a drug that the Florida Supreme Court has described as "a harmful mind-altering drug which endangers the health of the user and which is...