Taylor v. Department of Professional Regulation, Bd. of Medical Examiners, BI-328
| Decision Date | 18 November 1988 |
| Docket Number | No. BI-328,BI-328 |
| Citation | 534 So.2d 782,13 Fla. L. Weekly 2539 |
| Parties | 13 Fla. L. Weekly 2539 William N. TAYLOR, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee. |
| Court | Florida District Court of Appeals |
Julian Clarkson and Michael L. Rosen of Holland & Knight, Tallahassee, for appellant.
William M. Furlow, Dept. of Professional Regulation, Tallahassee, for appellee.
Appellant, a licensed physician disciplined by the Board of Medical Examiners, asserts that the Board has no jurisdiction to discipline him for acts of professional misconduct committed prior to his licensure. We agree and reverse.
The Department of Professional Regulation ("Department") filed an administrative complaint against appellant charging him with violations of Section 458.331, Florida Statutes (1987), which enumerates the grounds for disciplinary action against a physician. The complaint included an allegation that appellant was unable to practice medicine with reasonable skill and safety contrary to Section 458.331(1)(s).
After a formal hearing pursuant to section 120.57(1), Florida Statutes (1987), the hearing officer found most of the Department's factual allegations proven but concluded that the Department had not proven appellant guilty of committing any disciplinary violations subsequent to his licensure. Appellant was admitted to the practice of medicine July 13, 1982. The hearing officer found that the majority of the acts proven by the Department had occurred prior to this date. As to the remainder, the date was so vague that it could not be determined whether they occurred prior to appellant's licensure. Accordingly, the hearing officer found that the Department had failed to prove any post-licensure misconduct. Significantly, the hearing officer found the Department's charge that appellant was presently unable to practice medicine with reasonable skill and safety unproven.
The hearing officer concluded that the Board had no jurisdiction to discipline appellant for disciplinary violations committed prior to his licensure 1 and recommended dismissal of the complaint. The Department challenged the hearing officer's jurisdictional ruling, 2 and the Board in its final order rejected the hearing officer's conclusion of law and found that the Board had jurisdiction to discipline appellant for prelicensure misconduct. Appellant appeals from the final order imposing a reprimand and placing him on probation. 3
This court has previously considered the instant question in Farzad v. Dept. of Professional Regulation, 443 So.2d 373 (Fla. 1st DCA 1983), in which we expressed doubts as to the Board's jurisdiction to discipline a physician for prelicensure misconduct. We found it unnecessary to decide the question in that, unlike the instant case, the Department had charged and proven misrepresentation on Farzad's part in the obtaining of her medical license, based upon her failure to reveal the prelicensure incident. 4
In Farzad we expressed skepticism as to the Department's reliance upon Gould v. State, 99 Fla. 662, 127 So. 309 (1930) in which the Supreme Court held that an attorney could be disbarred for misconduct which occurred prior to his admission to the bar. 5 In Gould, the Supreme Court observed that it has the inherent power to control the conduct of its own affairs and to maintain its own dignity. By contrast, physician disciplinary proceedings are governed by statutes which, being penal in nature, are to be strictly construed and strictly followed. State ex rel. Jordan v. Pattishall, 99 Fla. 296, 126 So. 147 (1930).
The Department's reliance upon Cirnigliaro v. Florida Police Standards and Training Commission, 409 So.2d 80 (Fla. 1st DCA 1982) is misplaced. In Cirnigliaro we held that the Commission properly revoked Cirnigliaro's police officer's certificate due to his pre-application conviction of a misdemeanor involving moral turpitude. Appellee cites Cirnigliaro as authority for the proposition that it has jurisdiction over appellant's prelicensure conduct. Cirnigliaro, however, involved not a disciplinary action for misconduct but rather the revocation of Cirnigliaro's certificate pursuant to a statutory mandate providing that a minimum qualification for certification was that an...
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