Final Order No. DOH-14-2159FILED DAT',DEc
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Agency lerk

STATE OF FLORIDA
_
BOARD OF OSTEOPATHIC MEDICINE

DEPARTMENT OF HEALTH
Petitioner,
DOH Case No:
DOAH Case No.:
License No.:

VS.

2012-00680
13-4756PL
OS 4930

DAVID SIMON, D.O.,
Respondent.

FINAL ORDER
THIS CAUSE came before the Board of Osteopathic Medicine (Board) pursuant
to Sections 120.569 and 120.57(1), Florida Statutes, on November 14, 2014, in Tampa,
Florida, for the purpose of considering the Administrative Law Judge's Recommended
Order, Petitioner's Exception to Penalty and Motion to Increase to Penalty, and
Respondent's Response to Petitioner's Exception to Penalty in the above-styled cause.
Petitioner was represented by Yolonda Green, Assistant General Counsel. Respondent
was not present and was represented by David Spicer, Esquire.
Upon review of the Recommended Order, the argument of the parties, and after a
review of the complete record in this case, the Board makes the following findings and
conclusions.
FINDINGS OF FACT
1.

The findings of fact set forth in the Recommended Order are approved and

adopted and incorporated herein by reference.
2.

There is competent substantial evidence to support the findings of fact.

-MQA

3 1 2014'

 CONCLUSIONS OF LAW
1.

The Board has jurisdiction of this matter pursuant to Section 120.57(1),

Florida Statutes, and Chapter 459, Florida Statutes.
2.

The Conclusions of Law set forth in the Recommended Order are

approved and adopted and incorporated herein by reference.
RULINGS ON EXCEPTION TO PENALTY
The Board reviewed and considered the Petitioner's Exception to Penalty and
Motion to Increase Penalty (Petitioner's Exception to Penalty), the Respondent's
Response to Petitioner's Exception to Penalty and Motion to Increase Penalty
(Respondent's Response), and ruled as follows:
Petitioner's Exception to Penalty is rejected, because the Board finds that the
Administrative Law Judge already considered specific mitigating or aggravating factors
when he set the penalty and for the reasons set forth by the Respondent's Response.
PENALTY
Upon a complete review of the record in this case, the Board determines that the
penalty recommended by the Administrative Law Judge be ACCEPTED. WHEREFORE
IT IS HEREBY ORDERED AND ADJUDGED:
1. Fine. Respondent shall pay an administrative fine of $10,000.00 to the Board
within six (6) months from the date this Final Order is filed. Said fine shall be
paid by money order or cashier's check to the Board of Osteopathic Medicine
and mailed to: DOH-Compliance Management Unit, Bin C-76, P.O. Box
6320, Tallahassee, Florida 32314-6320, Attention: Osteopathic Medicine
Compliance Officer.

2

 2. Probation — Indirect Supervision. The Respondent's license shall be placed on
probation for TWO (2) YEARS subject to the following terms and conditions:
A. Chaperone. Respondent shall not examine or treat any female patients
without a female employee who is a health care practitioner licensed by the
Department of Health present. The chaperone is required to be present any
time the Respondent is with a female patient and is required to be present for
the entire time the Respondent is with the patient. The Respondent is required
to maintain a log of his examination and treatment of female patients, and the
chaperone is required to state in the log that the chaperone was present with
the patient during the entire physician-patient encounter. The chaperone is
required to be approved by the Board. The Board delegates authority to the
Chair to approve the chaperone. For continuity of practice, multiple
chaperones may be approved at any time.
B. PRN Evaluation and Compliance. Within six (6) months of the date of this
Final Order, the Respondent is required to be evaluated by the Professionals
Resource Network, Inc., (PRN) and comply with its recommendations, if any.
C. Indirect Supervision. Respondent shall practice only under the indirect
supervision of a Board-approved osteopathic or allopathic physician,
hereinafter referred to as the "monitor." Indirect supervision by a monitoring
physician does not require that the monitor practice on the same premises as
the Respondent; however, the monitor shall practice within a reasonable
geographic proximity to Respondent, which shall be within 20 miles and shall
be readily available for consultation. The Respondent shall provide the

 monitor with a copy of the Administrative Complaint, Final Order, and other
relevant orders. Respondent shall allow the monitor access to Respondent's
medical records, calendar, patient logs, or other documents necessary to
monitor Respondent as detailed below.
a. Approval of Monitoring Physician.
1. Respondent shall not practice except under the indirect supervision of a
BOARD CERTIFIED physician fully licensed under Chapter 458 or
Chapter 459, Florida Statutes, to be approved by the Board as directed
below. The monitor must be in good standing, in active status, without
restriction or limitation on his or her license, must be qualified by
training and experience, and must not have any conflicts of interest,
including business relationships or sharing of office space, that would
prohibit him or her from impartially performing his or her duties as a
monitor. Specific grounds for rejecting a proposed monitor by the
Board or its designee shall include but are not limited to the following:
a) the proposed monitor has previously been subject to disciplinary
action against his or her medical license in any jurisdiction; b) the
proposed monitor is currently under investigation or is the subject of
pending disciplinary action; c) the proposed monitor is not actively
engaged in the same or similar specialty; and d) the proposed monitor
is a relative or employee of the Respondent.
b. Temporary Approval. The Board confers authority on the Chair to
temporarily approve Respondent's monitor. To obtain temporary approval,

 Respondent shall submit to the Chair the name and curriculum vitae of the
proposed monitor, and the proposed supervisor is required to submit a letter
stating the he or she received and reviewed the Final Order in this case.
Temporary approval shall remain only in effect until the next meeting of the
Board. Respondent shall not practice medicine without an approved monitor.
c. Formal Approval. Respondent shall have the monitor with the Respondent
at the Respondent's first appearance before the Board of Osteopathic
Medicine after commencement of probation. Respondent shall submit a
current curriculum vita and a description of current practice from the
proposed monitor to the Board office no later than thirty (30) days before
Respondent's first scheduled probation appearance.

Respondent and

Respondent's monitor shall also appear before the Board at such other times
directed by the Board. It shall be the Respondent's responsibility to ensure
the appearance of the monitor as directed.
d. Respondent shall not practice medicine without an approved monitoring
physician unless otherwise ordered by the Board.
e. Appearances. The Respondent and his proposed monitor shall appear
before the Board at the first meeting after probation commences, and at
other such times requested by the Board. In addition, the Respondent is
required to appear annually before the Board, and at the last Board
meeting preceding termination of probation. Respondent shall be noticed
by the Board staff of the date, time, and place of the Board's meeting
whereat Respondent's appearance is required. Failure of the Respondent

 to appear as requested or directed shall be considered a violation of the
terms of probation, and shall subject the Respondent to disciplinary action.
f. After the meeting of the Board at which the monitor is approved and after
the probation period has started, the Respondent shall practice only under
the supervision of an approved monitor as specified by this Order. If for
any reason the approved monitor is unwilling or unable to serve, the
Respondent and monitor shall immediately notify the Executive Director
of the Board. Respondent shall not practice medicine pending approval of
this temporary monitor by the Chair of the Board. Respondent shall make
arrangements with his temporary monitor to appear before the Board at its
next regularly scheduled meeting for consideration of the monitor by the
Board. Respondent shall practice only under the auspices of the
temporary monitor (approved by the Board Chair) until the next regularly
scheduled meeting of the Board at which the issue of the Board's approval
of Respondent's new monitor shall be addressed.
g. The monitor shall:
1. Review the log of the female patient chaperones. The monitor also shall
review 25% percent of Respondent's patient charts selected on a random basis
at least once every month for the purpose ascertaining whether Respondent
provided proper medical care, and maintained appropriate medical records.
To comply with this responsibility of random review, the monitor shall be
responsible for making the random selection of the records to be reviewed.
2. Submit quarterly reports, in affidavit form, which shall include:

 a. A brief statement of why Respondent is on probation;
b. A description of Respondent's practice (type and composition);
c. A statement addressing Respondent's compliance with the terms of
probation;
d. A brief description of the monitor relationship with Respondent;
e. A statement advising the Board of any problems which have
arisen; and
f. A summary of the dates on which the monitor reviewed the
Respondent's records, the number of records reviewed, and a
statement related to the overall quality of the records reviewed.
3. Immediately report to the Board any violations by Respondent of
Chapters 456 or 459, Florida Statutes, and the rules promulgated thereto.
h. Respondent shall submit quarterly reports, in affidavit form, which shall
include:
a. A brief statement of why Respondent is being monitored;
b. A description of practice location;
c. A description of current practice (type and composition);
d. A brief statement of compliance with probationary terms;
e. A description of the relationship with the monitoring physician;
f. A statement advising the Board of any problems which have
arisen; and
g. A statement addressing compliance with any restrictions or
requirements imposed.

 i. Continuity of Practice.
a. Tolling Provisions. In the event that Respondent leaves the State
of Florida for a period of thirty days or more or otherwise does not
engage in the active practice of medicine in the State of Florida,
then the following provisions of monitoring shall be tolled and
shall remain in a tolled status until Respondent returns to the active
practice of medicine in the State of Florida: 1) the time period of
monitoring shall be tolled; and 2) the provisions regarding the
indirect monitoring by another physician and the required quarterly
reports from the monitor shall be tolled.
b. Active Practice. In the event that Respondent leaves the active
practice of medicine for a period of one year or more, the Board
may require the Respondent to appear before the Board and
demonstrate his ability to practice medicine with skill and safety to
patients prior to resuming the practice of medicine in this State.
Compliance Address. All reports, correspondence, and inquiries shall be
sent to DOH, Compliance Management Unit, Bin #C76, 4052 Bald
Cypress Way, Tallahassee, Florida 32399-3251, Attn: Osteopathic
Medicine Compliance Officer.
RULING ON ORAL MOTION TO BIFURCATE
AND RETAIN JURISDICTION TO ASSESS COSTS
The Board considered the Petitioner's Motion to Bifurcate and Retain Jurisdiction
to Assess Costs in Accordance with Section 456.072, Florida Statutes, and granted the
Motion, and hereby retains jurisdiction to assess costs.

8

 This Final Order shall become effective upon filing with the Clerk of the
Department of Health.
DONE AND ORDERED this

(-V

day of

PeCeitt/2014.

BOARD OF OSTEOPATHIC MEDICINE

Christy Robinson, Executive Director
on behalf of Joel Rose, D.O., CHAIR
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review
pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the
Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one
copy of a Notice of Appeal with the Agency Clerk of the Department of Health, and a
second copy, accompanied by filing fees prescribed by law, with the District Court of
Appeal, First District, or with the District Court of Appeal in the Florida appellate district
where the party resides. The Notice of Appeal must be filed within thirty (30) days of
rendition of the Order to be reviewed.

9

 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by U.S. Mail to David Simon, D.O., 101 S. Federal Hwy., Lake Worth, FL
33460-4228; and David Spicer, Esq., 11000 Prosperity Farms Road, Suite 104, Palm
Beach Gardens, FL 33410; John G. Van Laningham, Administrative Law Judge,
Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway,
Tallahassee, FL 32399-3060; Penny Ziegler, M.D., Medical Director, Professionals
Resource Network, Inc., P.O. Box 1020, Fernandina Beach, FL 32035-1020; and by
interoffice mail to Donna C. McNulty, Senior Assistant Attorney General, PL-01, The
Capitol, Tallahassee, Florida 32399-1050; and Yolonda Y. Green, Assistant General
Counsel, Department of Health, 4052 Bald Cypress Way, Bin # C-65, Tallahassee,
2014.

Florida 32399-3265, this3\ day of

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Deputy Agency Clerk

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10

 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF
OSTEOPATHIC MEDICINE,
Petitioner,
Case No. 13-4756PL

vs.
DAVID SIMON, D.O.,
Respondent.

RECOMMENDED ORDER
This case came before Administrative Law Judge John G.
Van Laningham for final hearing by video teleconference on
May 20, 2014, at sites in Tallahassee and West Palm Beach,
Florida.
APPEARANCES
For Petitioner: Yolonda Y. Green, Esquire
Mary S. Miller, Esquire
Department of Health
4052 Bald Cypress Way, Bin C-65
Tallahassee, Florida 32399-3265
For Respondent: David W. Spicer, Esquire
Jonathan W. Chambers, Esquire
Law Offices of Spicer and Miller, P.L.
11000 Prosperity Farms Road, Suite 104
Palm Beach Gardens, Florida 33410-3477
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent, an
osteopathic physician who had a year-long consensual affair with

 one of his patients, committed sexual misconduct in the practice
of osteopathic medicine; and if so, whether Petitioner should
impose discipline on Respondent's license within the applicable
penalty guidelines or take some other action.
PRELIMINARY STATEMENT
On July 11, 2013, Petitioner Department of Health issued an
Administrative Complaint against Respondent David Simon, D.O.
Petitioner alleged that Respondent had engaged in sexual
misconduct with a patient. Dr. Simon timely requested a formal
hearing, and on December 11, 2013, Petitioner filed the
pleadings with the Division of Administrative Hearings, where an
Administrative Law Judge was assigned to preside in the matter.
After one continuance, which was unopposed, the final
hearing took place on May 20, 2014, as scheduled, with both
parties present. Petitioner called Dr. Simon as its only
witness. Joint Exhibit 1 was received, as were Petitioner's
Exhibits 6 and 7.11 Dr. Simon presented two witnesses: Dr. Mary
Scanlon and Helen Virginia Bush. Respondent's Exhibits 1, 2,
and 3 were admitted as well.
The final hearing transcript was filed on June 9, 2014.
Proposed recommended orders were due, and were filed, on
July 15, 2014. Each party's Proposed Recommended Order has been
considered.

2

 Unless otherwise indicated, citations to the Florida
Statutes and Florida Administrative Code refer to the provisions
in effect at the time Respondent allegedly engaged in the
conduct upon which Petitioner's charges against him are based.
FINDINGS OF FACT
1. Respondent David Simon, D.O. ("Simon"), is a family
practitioner who was, at all times relevant to this case,
licensed as an osteopathic physician in the state of Florida.
His office was located in Palm Beach County, where he practiced
medicine from 1985 through the events at issue and beyond, until
at least the date of the final hearing.
2. Petitioner Department of Health (the "Department") has
regulatory jurisdiction over licensed osteopathic physicians
such as Simon. In particular, the Department is authorized to
file and prosecute an administrative complaint against a
physician, as it has done in this instance, when a panel of the
Board of Osteopathic Medicine has found that probable cause
exists to suspect that the physician has committed a
disciplinable offense.
3. In May 2005, a 30-something year-old woman named O.K.
became a regular patient of Simon's. As C.K.'s primary care
physician from 2005 until the end of 2011, Simon treated C.K.
for a variety of physical and psychological disorders. The
nature and quality of Simon's medical care of C.K. are not in

3

 dispute, the Department having neither alleged nor proved that
Simon's treatment of C.K. ever fell below the applicable
standard of care, or that Simon's medical records failed to
justify any course of treatment he undertook for her benefit.
4. In or around November 2010, while their otherwise
unremarkable physician-patient relationship remained intact,
Simon and C.K. entered into a mutually consensual sexual
relationship. This affair had its genesis in a discussion
between Simon and C.K. that occurred on October 12, 2010, during
an office visit. While being seen that day, C.K. expressed
concern about having been exposed recently to sexually
transmitted diseases as a result of experiences which she not
only related in some detail to Simon, but also corroborated with
photographic evidence stored in her cell phone. In view of
these disclosures, Simon lost his professional detachment and
entered into a flirtatious conversation of a personal, even
intimate, nature with C.K. that was outside the scope of his
examination or treatment of C.K. as a patient. O.K. was a
willing participant in the non-clinical sexual banter which
ensued.
5. Some days or weeks later (the precise date is
unavailable), O.K. stopped by Simon's office on a Friday
afternoon after business hours, when Simon was there alone. The
two resumed their previous, personal conversation, and O.K.

4

 proposed that they have sexual relations with one another, a
suggestion to which Simon responded positively.
6. Within weeks afterwards, Simon called C.K., and they
made arrangements to meet privately after hours at his office,
which they later did, as mentioned above, sometime in
November 2010. Beginning with that visit, and continuing for
about one year, Simon and C.K. met once or twice a month in
Simon's office, alone, to engage in sexual activity.2/Simon
used his cell phone to call or text C.K. to schedule these
trysts.
7. C.K. consented to the sexual activity with Simon. She
was, however, incapable of giving free, full, and informed
consent to such activity with her physician.3'Because O.K. was,
at all relevant times, a competent adult, the undersigned infers
that her incapacity to freely give fully informed consent
stemmed from Simon's powerful influence over her as a patient of
his.
8. C.K. and Simon did not have sexual relations during, or
as part of, any visit that C.K. made to Simon's office for the
purpose of seeking medical advice or care. In other words,
doctor's appointments did not provide occasions, or serve as
cover, for intimate rendezvous. There is no persuasive evidence
that Simon ever tried to convince O.K. that their sexual
encounters would be therapeutic or were somehow part of a course

5

 of purported medical treatment or examination. Rather, Simon
testified credibly (and it is found) that he and O.K. kept their
personal and professional relationships separate and distinct.4/
9. The Department has made much of the type of sexual acts
that Simon and C.K. engaged in. Simon described their behavior,
somewhat euphemistically, as "sexually adventurous." The
Department, in contrast, has implied that Simon is a paraphiliac
or pervert, a contention which the undersigned rejects as not
just unsupported, but disproved by the evidence. Although at
least some of the sexual conduct in question might fairly be
dubbed unconventional, more important is that every interaction
between these adults took place in private, within the context
of mutual consent. There is, moreover, no clear and convincing
proof in this record of sexual violence or aggression, nor any
evidence of actual injury, damage, or harm. For reasons that
will be discussed, the undersigned has concluded that the
details of Simon and C.K.'s sexual encounters are irrelevant to
the charges at hand; thus, no additional findings about the
specific sexual activities are necessary.
10. Simon's liaison with C.K. lasted until late
December 2011, at which time C.K. abruptly terminated the
relationship. The evidence fails to establish C.K.'s reasons
for doing so. Thus, the circumstances surrounding the end of

6

 the affair, of which scant evidence was presented in any event,
are irrelevant.
11. In the wake of the break up, Simon's affair with C.K.
became a matter of public knowledge, gaining him the sort of
notoriety few physicians would covet. Facing personal disaster
and professional ruin, Simon sought counseling from
Helen Virginia Bush, a specialist in sex therapy who is licensed
both as a clinical social worker and as a marriage and family
therapist. Ms. Bush counseled Simon on subjects such as
professional boundaries and erotic transference. At her urging,
Simon attended and successfully completed the PBI Professional
Boundaries Course, a nationally recognized program for doctors
and others at risk of developing inappropriate personal
relationships with patients or clients. Ms. Bush testified
credibly that in her opinion, which the undersigned accepts,
Simon is unlikely to enter into another sexual relationship with
a patient or attempt to do so.
12. Simon shares office space and staff with Mary Scanlon,
D.O., a physician who, like Simon, specializes in family
medicine. Although she has an independent practice, Dr. Scanlon
works in close proximity to Simon, whom she met in 2000 during
her residency when Simon was the attending physician.
Dr. Scanlon believes Simon to be an excellent physician from
whom she has learned much about practicing medicine, and her

7

 credible testimony that Simon's patients hold him in high regard
and have largely stood by him throughout this scandal is
accepted.
13. Dr. Scanlon was an effective character witness for
Simon who favorably impressed the undersigned with her earnest
and forthright demeanor. That she has elected to continue
practicing in the office she shares with Simon despite the
public disclosure of Simon's disgraceful dalliance with C.K.
(which she in no way condoned or tried to excuse), even though
she is not contractually bound to stay there, manifests genuine
support of and respect for Simon, and tells the undersigned--more persuasively than any testimony--that his career is worth
saving.
14. This is the first time that any disciplinary action
has been taken against Simon's medical license.
Ultimate Factual Determinations
15. The evidence establishes, clearly and convincingly,
that Simon exercised influence within the patient-physician
relationship, albeit probably unwittingly, for purposes of
engaging O.K. in sexual activity. This ultimate finding is
based in part on an inference which follows from the presumed
fact of C.K.'s incapacity to consent to sexual activity with
Simon, but also on other circumstances, the most salient of
which are that the initial steps toward the affair were taken

8

 during a medical examination, and that all of the sexual
activity at issue occurred in the doctor's office.
16.

It is therefore determined, as a matter of ultimate

fact, that Simon is guilty of engaging in sexual misconduct with
a patient, as more fully defined in section 459.0141, Florida
Statutes, which is a disciplinable offense punishable under
section 459.015(1)(1).
CONCLUSIONS OF LAW
17. The Division of Administrative Hearings has personal
and subject matter jurisdiction in this proceeding pursuant to
sections 120.569 and 120.57(1), Florida Statutes (2013).
18.

The Department has brought two charges against Simon,

each founded on the same conduct, namely Simon's affair with
C.K., which the Department alleges Simon carried out through the
use of the patient-physician relationship, which gave him
exploitable influence over C.K.
19. A proceeding, such as this one, to suspend, revoke, or
impose other discipline upon a license is penal in nature.
State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487,
491 (Fla. 1973). Accordingly, to impose discipline, the
Department must prove the charges against Simon by clear and
convincing evidence. De 't of Banking & Fin., Div. of Sec. &
Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34
(Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95

9

 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med.,
654 So. 2d 205, 207 (Fla. 1st DCA 1995).
20. Regarding the standard of proof, in Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court
developed a "workable definition of clear and convincing
evidence" and found that of necessity such a definition would
need to contain "both qualitative and quantitative standards."
The court held that:
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
conviction, without hesitancy, as to the
truth of the allegations sought to be
established.
Id. The Florida Supreme Court later adopted the Slomowitz
court's description of clear and convincing evidence. See In re
Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District
Court of Appeal also has followed the Slomowitz test, adding the
interpretive comment that "[a]lthough this standard of proof may
be met where the evidence is in conflict, .

. it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.
v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991),
rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

10

 21.

Taking the instant charges in reverse order, the

Department accused Simon, in Count Two of the Administrative
Complaint, with sexual misconduct under section 459.015(1)(1),
Florida Statutes, which provides in pertinent part as follows:
(1) The following acts shall constitute
grounds for . . . disciplinary action[:]
*
(1) Exercising influence within a patientphysician relationship for purposes of
engaging a patient in sexual activity. A
patient shall be presumed to be incapable of
giving free, full, and informed consent to
sexual activity with his or her physician.
22.

The kind of inappropriate sexual activity between

physicians and patients that subjects a physician to discipline
under section 459.015(1)(1) is also the focus of
section 459.0141, which defines "[s]exual misconduct in the
practice of osteopathic medicine" as meaning a
violation of the osteopathic physicianpatient relationship through which the
osteopathic physician uses the relationship
to induce or attempt to induce the patient
to engage, or to engage or attempt to engage
the patient, in sexual activity outside the
scope of the practice or the scope of
generally accepted examination or treatment
of the patient. Sexual misconduct in the
practice of osteopathic medicine is
prohibited.
(emphasis added).
23.

In Count One of the Administrative Complaint, the

Department charged Simon, under section 459.015(1)(pp), with

11

 having violated section 459.0141 by committing sexual misconduct
in the practice of osteopathic medicine. Section 459.015(1)(pp)
defines a catchall offense that subjects licensees to discipline
for violating any provision of chapter 459 "or chapter 456, or
any rules adopted pursuant thereto." The Department considers
the last sentence in section 459.0141 ("[s]exual misconduct . .
is prohibited") to be an independently violable provision of
chapter 459 and consequently takes the position that sexual
activity with a patient is punishable not only under
section 459.015(1)(1), but also as a separate catchall offense
Under paragraph (pp).
24. As a threshold matter, the undersigned finds it
necessary to consider whether section 459.015(1)(1) defines a
disciplinable offense distinct from that which the Department
believes is described in sections 459.015(1)(pp)/459.0141. When
determining the meaning of disciplinary statutes, such as these,
the law demands that the pertinent language "be construed
strictly, in favor of the one against whom the penalty would be
imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate,
592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep't of
Bus. & Prof'l Reg., 812 So. 2d 583, 583-84 (Fla. 3d DCA 2002);
McClung v. Crim. Just. Stds. & Training Comm'n, 458 So. 2d 887,
888 (Fla. 5th DCA 1984)("Mhere a statute provides for
revocation of a license the grounds must be strictly construed

12

 because the statute is penal in nature. No conduct is to be
regarded as included within a penal statute that is not
reasonably proscribed by it; if there are any ambiguities
included, they must be construed in favor of the licensee."); see
also, e.g., Griffis v. Fish & Wildlife Conserv. Comm'n, 57 So. 3d
929, 931 (Fla. 1st DCA 2011)(statutes imposing a penalty must
never be extended by construction).
25. It will be observed initially that sections
459.015(1)(1) and 459.0141 are in pari materia—that is, they
address the same subject, i.e., sexual misconduct by an
osteopathic physician. As the Florida Supreme Court has
explained:
[It is a) well-settled rule that, where two
statutes operate on the same subject without
positive inconsistency or repugnancy, courts
must construe them so as to preserve the
force of both without destroying their
evident intent, if possible. It is an
accepted maxim of statutory construction that
a law should be construed together with and
in harmony with any other statute relating to
the same subject matter or having the same
purpose, even though the statutes. were not
enacted at the same time.
Mann v. Goodyear Tire & Rubber Co., 300 So. 2d 666, 668 (Fla.
1974)(footnotes omitted); see also, e.g., Mehl v. State, 632 So.
2d 593, 595 (Fla. 1993)(separate statutory provisions that are in
pari materia should be construed to express a unified legislative
purpose); Lincoln v. Fla. Parole Comm'n, 643 So. 2d 668, 671

13

 (Fla. 1st DCA 1994)(statutes on same subject and having same
general purpose should be construed in pari materia).
26.

No inconsistency exists between sections 459.015(1)(1)

and 459.0141. To the contrary, the two statutes are
complementary. Section 459.015(1)(1) makes it a disciplinable
offense to "[e]xercise influence within a patient-physician
relationship" for the purpose of seducing a patient.
Section 459.0141 supplies a definition of "sexual misconduct in
the practice of osteopathic medicine" whose essence is "us[ing]
the [patient-physician] relationship" to seduce a patient. There
is no semantic difference between "exercising influence within a
patient-physician relationship," on one hand, and "using the
patient-physician relationship," on the other, when each of
the phrases is plainly intended, as here, to identify a
wrongful means of seduction. Behind both formulations is the
notion that the physician holds the upper hand in the patientphysician relationship, and therefore, if so inclined, can
exploit this relatively powerful position to overreach the
patient in a sexual transaction. Both of the statutes at issue-sections 459.015(1)(1) and 459.0141--express the same policy of
discouraging physicians from using their position of authority as
leverage to persuade patients to indulge in sexual relations.
27.

Given the identity of meaning, the undersigned cannot

imagine a scenario (and concludes there is none) in which a

14

 physician who exercised influence within a patient-physician
relationship to engage a patient in sexual activity could not
also be said to have used the relationship to engage the patient
in sexual activity, or vice versa, where the use of a patientphysician relationship for such a purpose would not
simultaneously entail the exercise of undue influence within the
relationship. The Board of Osteopathic Medicine evidently has
come to the same conclusion, for in its penalty guidelines the
board describes the offense defined in section 459.015(1)(1) as
"[s]exual misconduct within the patient physician relationship."
See Fla. Admin. Code R. 64315-19.002(13). This summary clearly
conflates—and thus equates—"[s]exual misconduct in the practice
of osteopathic medicine" (§ 459.0141) with "[e]xercising
influence within a patient-physician relationship for purposes of
engaging a patient in sexual activity" (§ 459.015(1)(1)).
28. When the two statutes are read together, the statement
in section 459.0141 that sexual misconduct "is prohibited"
stands as a declaration of the fact that such misconduct is
prohibited—under section 459.015(1) (1), which specifically
subjects a physician to disciplinary action for taking advantage
of a patient by enticing him or her to engage in sexual
activity. It is concluded that because, according to the plain
and unambiguous language of the statutes in question, sexual
misconduct in the practice of osteopathic medicine as defined in

15

 section 459.0141 is the specific offense punishable under
section 459.015(1)(1), the same misconduct cannot also be
punishable under paragraph (pp) as a general catchall offense.6'
Therefore, although the Administrative Complaint contains two
counts, there is but one disciplinable offense in back of the
charges.
29.

The next legal issue to resolve concerns the operation

of the presumption of incapacity set forth in section
459.015(1)(1), which provides that a "patient shall be presumed
to be incapable of giving free, full, and informed consent to
sexual activity with his or her physician." Under the plain
language of the statute, this presumption is irrebuttable, or
conclusive. See Hall v. Recchi Am., 671 So. 2d 197, 200 (Fla.
1st DCA 1996)("A presumption is conclusive if a party is
not given a reasonable opportunity to disprove either the
predicate fact or the ultimate fact presumed."). Pursuant to
section 459.015(1)(1), if sexual activity between physician and
patient (the basic or predicate fact) is shown to have occurred,
then the fact finder must determine (as a presumed or ultimate
fact) that the patient was incapable of giving full, free, and
informed consent to the activity, at least where such a
determination is relevant to the disposition of the case.
30.

The presumption of incapacity has two implications

that are fairly readily apparent. One is confirmation that lack

16

 of consent is not a constituent element of the offense. The
Department, in other words, need not prove that an instance of
sexual activity between a physician and his patient was
nonconsensual in order to establish a disciplinable act. The
other is that consent is not an affirmative defense: a
physician can be found guilty of sexual misconduct involving a
patient even if the evidence shows that, as a matter of
historical fact, the patient consented to the sexual activity.7/
31. There is a third implication that is less apparent.
The presumption of incapacity propagates the idea that all
patients are vulnerable, regardless of the particular
circumstances surrounding each individual case, because no
patient can ever be found to have been capable of freely giving
fully informed consent. The only thing that all patients who
have had sex with their doctors have in common, however, is that
each of them has had sex with his or her doctor. This means
that the cause of a patient's presumed incapacity must be
related, not to any characteristics unique to the given patient
(for all patients are equally incapable in the eyes of the law),
but to the fact that the patient's sexual partner was a doctor.
Because the sole common denominator is the patient-physician
relationship, that relationship must somehow be the reason for
the patient's incapacity to consent.

17

 32.

Just how the patient-physician relationship causes

such incapacity is not stated in the statute. The only
explanation that makes logical sense, however, depends upon the
assumption that any consent which the patient may have given as
a matter of historical fact was the product of the physician's
irresistible, overpowering influence, rather than the patient's
free exercise of fully independent judgment. Necessarily
embedded within such assumption is the presupposition that
behind every instance of sexual activity between a patient and
physician is a physician who took advantage of his or her
superior position vis-a-vis the patient when obtaining the
patient's consent to sex.
33. To be sure, section 459.015(1)(1) does not require the
fact finder to presume, from the predicate fact of sexual
activity with a patient, that the physician exercised influence
within the patient-physician relationship to bring about the
sexual activity. Only the patient's incapacity to consent must
be presumed from that basic fact. The patient's presumed
incapacity to consent, however, strongly implies physician
overreaching as the only reasonable explanation for an otherwise
competent adult's inability to give free, full, and informed
consent to sexual activity. The undersigned concludes that the
ultimate fact of incapacity to consent which follows as a matter
of law from sufficient proof of sexual activity in turn gives

18

 rise to a permissive inference that the physician exercised
influence within the patient-physician relationship for purposes
of engaging the patient in sexual activity. The fact finder is
allowed but not required to draw such inference, and the burden
remains throughout on the Department to prove the elemental
fact.81 If, despite the allowable inference, the fact finder is
unable to determine that the physician used the patientphysician relationship as a means to engage the patient in
sexual activity, then the charge of sexual misconduct in the
practice of osteopathic medicine is not proved, and the presumed
fact of incapacity to give consent becomes irrelevant.
34. In this case, as explained above, the inference of
physician overreaching, together with other circumstantial
evidence which corroborates that implied fact, convinced the
undersigned to determine, as a matter of ultimate fact, that
Simon exercised influence within the patient-physician
relationship for purposes of engaging C.K. in sexual activity.
35. The Board of Osteopathic Medicine imposes penalties
upon licensees in accordance with the disciplinary guidelines
prescribed in Florida Administrative Code Rule 641315-19.002.
The range of penalties for a first offense comprising a single
violation of the statutes prohibiting sexual misconduct in the
practice of osteopathic medicine is set forth in rule 64B1519.002(13) as follows:

19

 MINIMUM
probation
and
$10,000
fine

MAXIMUM
denial of
licensure or
revocation and
$10,000 fine

36. Aggravating and mitigating circumstances are listed in
rule 64B15-19.003 and include without limitation the following:
(1) The danger to the public;
(2) The length of time since the
violations;
(3) The number of times the licensee has
been previously disciplined by the Board;
(4) The length of time the licensee has
practiced;
(5) The actual damage, physical or
otherwise, caused by the violation;
(6) The deterrent effect of the penalty
imposed;
(7) The effect of penalty upon the
licensee's livelihood;
(8) Any effort of rehabilitation by the
licensee;
(9) The actual knowledge of the licensee
pertaining to the violation;
(10) Attempts by the licensee to correct or
stop violations or refusal by licensee to
correct or stop violations;
(11) Related violations against licensee in
another state, including findings of guilt
or innocence, penalties imposed and
penalties served;
(12) The actual negligence of the licensee
pertaining to any violations;
(13) The penalties imposed for related
offenses;
(14) The pecuniary gain to the licensee;
(15) Any other relevant mitigating or
aggravating factors under the circumstances.
Any penalties imposed by the board may not
exceed the maximum penalties set forth in
Section 459.015(2), F.S.

20

 The undersigned has considered all of these factors and
concludes that none warrants a deviation from the recommended
penalties for a first offense involving sexual misconduct with
an individual patient.
37.

Determining the appropriate penalty presents a

challenge nonetheless, for the prescribed range of penalties
starts with probation, which is serious but not necessarily
career ending, and tops out at revocation, the severest
punishment that a regulatory board can impose on a licensee.
The Department urges the undersigned to recommend revocation on
the grounds that Simon poses a danger to the public and did not
himself break off the relationship with C.K. But the Department
has not cited any similar cases in which the Board of
Osteopathic Medicine imposed such a stringent penalty for a
first offense of this nature.
38.

At hearing, the Department argued that stern

discipline was warranted based on the types of sexual acts Simon
and C.K. enjoyed. The statutes, however, do not distinguish
between types of sexual activity, much less suggest that some
acts are more opprobrious than others for purposes of imposing
discipline against a doctor who has had sexual relations with a
patient. At least in the absence of circumstances not proved
here, such as, e.g., sexual violence or aggression, or the
intentional infliction of physical injury or emotional distress,

21

 all acts falling within the category of "sexual activity" are
equal, and none justifies a harsher penalty than another. That
is why, in this case, a detailed account of the specific sexual
activities was unnecessary. The Department's contention that
Simon is especially culpable for having performed certain sexual
acts is rejected.
39. Simon holds up Department of Health v. Magrann, Case
No. 02-4826PL (Fla. DOAH Aug. 5, 2003), rejected in part, Case
No. 2000-14334 (Fla. DOH Sept. 22, 2003), as an apt example of
the board's exercising its discretion soundly in penalizing a
similarly situated physician. The undersigned agrees that
Magrann provides guidance in determining a fair penalty here.
In that case, as here, an osteopathic physician had a mutually
consensual sexual relationship with an adult patient. Although
the affair there was briefer {three months) than Simon's with
C.K., the doctor and his paramour in the previous case saw each
other far more frequently, making their relationship roughly
comparable to the one at hand.
40.

Unlike Simon, though, the doctor in Magrann had

actively pursued his initially reluctant patient with
increasingly transparent ploys, resorting eventually, during an
ostensible medical examination, to a risky hands-on approach
which subjected his patient to unsolicited kissing and sexual
touching, making her nervous and uncomfortable. She shed her

22

 misgivings soon enough and became an apparently willing
participant in the ensuing affair, but the facts of Magrann
paint a much clearer picture of physician overreaching than do
the facts found herein. At a minimum, it cannot fairly be
concluded that Simon's conduct was worse than that of the
physician in Magrann. Therefore, Simon's punishment—for the
same offense arising from equivalent if not less blameworthy
circumstances--should be in line with the discipline imposed in
the earlier case.
41. Interestingly, in Magrann the administrative law judge
recommended that the board suspend the offending physician's
license for one year and impose a $2,000 fine. The Board of
Osteopathic Medicine, however, rejected the recommended
penalties and imposed the following more lenient sanctions:
1. The Respondent shall undergo an indepth psychological evaluation coordinated
through the Professional's Recovery Network
(PRN) from a psychiatrist, psychologist or
other licensed psychotherapist experienced
in the treatment of boundary
violations/sexual misconduct. The licensee
shall supply a copy of this order to the
evaluator. The evaluation must contain
evidence that the evaluator knows of the
reason for referral. The evaluator must
specifically advise this Board that the
licensee is presently able to engage in the.
safe practice of medicine or recommend the
conditions under which safe practice could
be obtained. The Board reserves the right
to impose terms of probation and other
reasonable conditions when the Respondent
appears before the Board to demonstrate the

23

 ability to engage in the safe practice of
medicine.
2. If PRN recommends that Respondent enter
into monitoring, treatment, or other such
contract, the Respondent shall enter into
said contract and comply with all its
terms. The Respondent shall provide the
Board with a copy of the PRN contract and
execute a release authorizing PRN to release
information and medical records (including
psychiatric records and records relating to
treatment) to the Board as needed to
monitor the progress of the Respondent. The
Director of PRN shall report to the Board
any instance of noncompliance, any problems
that may occur with Respondent, and any
violations of Chapter 456 or 459, Florida
Statutes, or any other relevant statute,
within thirty (30) days of the occurrence.
3. The Respondent shall provide the Board
with a copy of the PRN evaluation and
contract (if required by PRN) by
November 5, 2003 and appear before the
Board with a representative from PRN at the
December 5-6, 2003 Board meeting in
Orlando, Florida. In the event PRN is
unable to complete Respondent's evaluation
within the above-referenced deadlines,
Respondent shall submit his evaluation to
the Board immediately thereafter and appear
before the Board at the next regularly
scheduled Board meeting.
4. Respondent shall not examine or treat
any female patients outside the physical
presence of a female Florida licensed
healthcare practitioner.
Thus, the doctor's license was not even suspended, much less
revoked.
42. Another case which is instructive on the issue of
appropriate sanctions is Department of Health v. Cohen, Case

24

 No. 10-3101PL, 2010 Fla. Div. Admin. Hear. LEXIS 105 (Fla. DOAH
Sept. 14, 2010; Fla. DOH Jan. 5, 2011). In Cohen, a medical
doctor was found guilty of sexual misconduct with a patient, but
the sexual activity there—in contrast to the consensual affair
at the heart of this case--was nonconsensual.

The doctor

committed a sexual battery upon a patient who had come into his
office to have her blood pressure checked. Curiously, despite
the egregious nature of the doctor's behavior, the Department
urged the administrative law judge to impose a less stringent
penalty than was called for under the applicable guidelines, and
proposed that his license not be suspended. The ALJ, however,
recommended that the doctor's license be suspended for one year,
together with other sanctions including two years of probation
after reinstatement and a $5,000 fine. The Board of Medicine
adopted the penalty recommended by the ALJ.
43. Cohen is distinguishable because the sexual misconduct
which gave rise to the disciplinable offense was clearly more
wrongful than Simon's. The doctor's behavior in Cohen was
criminal in nature; the same cannot be said of Simon's affair
with C.K. Significantly, even under the facts of Cohen, the
offending doctor's license was not revoked, and if the
Department had gotten its way, his license would not have been
suspended, either.

25

 RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions
of Law, it is RECOMMENDED that the Board of Osteopathic Medicine
enter a final order finding Simon guilty of committing sexual
misconduct with a patient, which is punishable under
section 459.015(1)(1), Florida Statutes. Because this is
Simon's first such offense, it is further RECOMMENDED that Simon
be placed on probation for two years subject to such reasonable
terms and conditions as the board deems appropriate, and that an
administrative fine of $10,000 be imposed.
DONE AND ENTERED this 30th day of July, 2014, in
Tallahassee, Leon County, Florida.

'JOHN G. VAN LANINGHAM
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
SUNCOM 278-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 30th day of July, 2014.

26

 ENDNOTES
Petitioner's Exhibit 7 consists of excerpts from Dr. Simon's
deposition. The particular portions that were admitted into
evidence are fully described in the Order on Objections to
Deposition Testimony, which was entered on June 25, 2014.
2/

The location of the assignations at issue—the doctor's
office is not as telling as it might seem at first blush.
Simon had reasons for not wanting to be seen in public with
O.K., and his office provided a convenient place for C.K. and
him to meet secretly and discreetly. That is not to say,
however, that the location is without significance, for the
medical office is the place where the physician's authority as a
physician—and hence ability to influence a patient—is
greatest.
This finding is a function of the conclusive presumption of
incapacity established in section 495.015(1)(1), Florida
Statutes ("A patient shall be presumed to be incapable of giving
free, full, and informed consent to sexual activity with his or
her physician.").
4/

In making these and all findings of fact herein, the
undersigned is constrained to rely "exclusively on the evidence
of record and on matters officially recognized."
§ 120.57(1)(j), Fla. Stat. (emphasis added). Because C.K. did
not testify at hearing, her version of the relevant events is
dehors the record. The absence of O.K.'s account from the
evidence of record means that the only persuasive proof of what
transpired between Simon and C.K. behind closed doors is Simon's
testimony, which gives an inherently one-sided (and perhaps a
little sanitized) report of the historical facts and does not
include any other statements he might have made outside of this
proceeding that the Department chose not to put into evidence.
5/ "Using the basic tenet of in pari materia to construe
together statutes relating to the same or similar subject matter
does not imply ambiguity." Dep't of Juv. Just. v. Okaloosa
Cnty., 113 So. 3d 1074 (Fla. 1st DCA 2013).
6/

If each specific offense defined in section 459.015(1) could
also be punished under paragraph (pp) as a catchall violation of
chapter 459, then every specifically enumerated disciplinable
act (all of which constitute violations of chapter 459) would
give rise to two separate offenses. Obviously that is not the
intended operation of paragraph (pp), whose purpose is to make

27

 an actionable offense out of any administrative violation which
otherwise would not be punishable.
7/ Consent is, however, a factor which reasonably may be
considered in determining the severity of the violation, should
one be found. Generally speaking, a physician who has committed
an actual sexual battery upon a patient, where no consent was
given as a matter of historical fact, should be dealt with more
harshly than one who has had sex with a consenting adult
patient, notwithstanding that the patient's consent, though in
fact given, must be found by operation of law not to have been
"free, full, and informed."
8/

See ibarrondo v. State, 1 So. 3d 226, 232 (Fla. 5th DCA
2008)(permissive presumption or inference allows but does not
require fact finder to infer the existence of an elemental fact
from proof of a basic fact and places no burden on defendant).

COPIES FURNISHED:
Yolanda Y. Green, Esquire
Mary S. Miller, Esquire
Department of Health
4052 Bald Cypress Way, Bin C-65
Tallahassee, Florida 32399-3265
David W. Spicer, Esquire
Jonathan W. Chambers, Esquire
Law Offices of Spicer and Miller, P.L.
11000 Prosperity Farms Road, Suite 104
Palm Beach Gardens, Florida 33410-3477
Anthony Jusevitch, Executive Director
Board of Osteopathic Medicine
Department of Health
4052 Bald Cypress Way, Bin C-06
Tallahassee, Florida 32399-3265
Jennifer A. Tschetter, General Counsel
Department of Health
4052 Bald Cypress Way, Bin A-02
Tallahassee, Florida 32399-1701

28

 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.

29

 FILED
DEPARTMENT OF HEALTH
DEPUTY CLERK
CLERK of...fie/ cre.i.n.a.
DATE AUG 1 4 204

STATE OF FLORIDA
BOARD OF OSTEOPATHIC MEDICINE
DEPARTMENT OF HEALTH,
Petitioner,
DOH CASE NO: 12-00680
DOAH CASE NO: 13-4756

v.

DAVID SIMON, D.O.,
Respondent.

PETITIONER'S EXCEPTION TO PENA TY AND MOTION TO
INCREASE PENALTY
Petitioner Department of Health files its exception to the
recommended penalty in this case and moires that the penalty be
• increased pursuant to Section 120.57(1)(l), Florida Statutes (2014).
In support thereof, Petitioner states:
Preliminary Statement
1.

Respondent David Simon, D.O., is a licensed Osteopathic

'physician in the State of Florida, having been issued license number
OS 4930. Prehearing Stipulation, ¶ 1(e).
2.

A formal administrative hearing in the. above-styled

matter was held on May 21, 2014, via video conference in
1

 Tallahassee and West Palm Beach, Florida. Recommended Order, at
p. 2.
3.

On July 30, 2014, the Administrative Law Judge ("AU")

entered a Recommended Order for the above-styled case. In the
Recommended Order, the AU found that the evidence was clear and
convincing that Respondent violated Section 459,014(1)(l), Florida
Statutes (2010, 2011). Recommended Order, at 11 16, p. 9.
4.

The AU recommended that the Board of Osteopathic

Medicine enter a final order imposing the following penalty on
Respondent: a $10,000 administrative fine and probation for two
years--subject-to-such -reasonable-terms—and-eonditions--as-the Boarddeems appropriate. Recommended Order, at p. 26.
5.

The Board of Osteopathic Medicine is vested by the laws

of Florida with the authority to reject or modify elements of a
Recommended Order.
6.

In particular, Florida law authorizes the Board of

Osteopathic Medicine to reduce or increase the penalty
recommended by an AU if it reviews the entire record and states
with particularity its reasons for modifying the penalty, citing to the
2

 specific portion of the record justifying the action. § 120.57(1)(I), Fla.
Stat. (2010, 2011).
7.

According to 28-106217, Florida Administrative Code,

exceptions shall identify the disputed portion of the recommended
order by page number and paragraph, shall identify the legal basis
for the exception, and shall include any appropriate and specific
•citations to the record.

Record references use . the following

abbreviations:
Recommended Order (RO p.
Final Hearing Transcript (Tr. p.
E-xception-to-Penalty
8.

Petitioner takes • exception to the AU's recommended

penalty in this matter.

The AU's recommended penalty is

inconsistent with the Ali's factual findings and conclusions of laW as
set forth below.
9.

10. The penalty guidelines for a first-offense violation of

Section 459.015(1)(1), Florida Statutes, allow for a minimum penalty
of probation and $10,000 fine and - a maximum penalty of revocation
and $10,000 fine. See Fla. Admin. Code R. 64B15-19.002.(13).
3

 11. The AU determined that the nature of Respondent's
violations did not warrant a penalty toward the top of the penalty
guidelines. Recommended Order, at p. 22-23 ¶ 39-41.
12.

In this case, the record contains compelling reasons to

increase the recommended discipline to administrative fine of
$10,000, suspension for two years subject' to conditions upon
reinstatement, permanent licensure restriction, which includes a
requirement that Respondent have a female chaperone licensed by
the. Florida Department of Health present during any examination or
treatment of female patients, and a reprimand of Respondent's
license,
13, In particular, the record indicates that the Initial steps of
Respondent's sexual relationship with the patient in this matter
occurred during a medical examination of the Patient. Recommended
Order, at p. 8-9 ¶ 15-16; Final Hearing Transcript, at p. 48-52. .
14. Respondent used his cell phone to call the patient and
made arrangements to meet the patient at Respondent's office.
Recommended Order, at 11 16, p. 9; Final Hearing Transcript, at p.
80-81.
4

 15. Respondent engaged in all of the sexual encounters at his
office. Recommended Order, at p. 8 11 15; Final Hearing Transcript, at
p. 58-59.
16. The patient's inability to consent to the sexual activity
stemmed from Respondent's powerful influence over the patient as
her physician. Recommended Order, at p. 5 ¶ 7; Final Hearing
Transcript, at p. 5.
17. Respondent's sexual activity with the patient was not an
isolated incident. Instead, it was a continuous series of sexual
encounters that occurred once or twice a month for nearly one year.
-Reeommended-Order,at-p;-51-6-,-Final-Hearing-Transeriptvat-p-.-587--- 18. Respondent treated the patient from 2005 through 2011,
for a variety of physical and psychological disorders, and he
continued to treat the patient during the course of his sexual affair
with the patient. Recommended Order, at p. 3, 5 ¶ 3, 8; Final
Hearing Transcript, at p. 58. Specifically, Respondent diagnosed
Respondent with depression, bulimia and anxiety on May 26, 2010
(less than 6 months prior to the initiation of sexual activity with the
patient). Final Hearing Transcript,. at p. 31-32. Respondent treated
5

 the patient with Abilify, Seroquel and Prozac.

Final Hearing

Transcript, at p. 31-32; 44-45.
19.

The AU looked to DOH v. Magrann, Case No. 02-4826

(Fla. DOAH August 5, 2003), rejected in part, Case No. 2000-14334
(Fla. DOH Sept. 22, 2003), as guidance for his penalty
recommendation. The Magrann case involves facts that make it
distinguishable from this matter, however, and does not provide
support for the AU's recommended penalty here.
20.

In Magrann, the Respondent engaged in a three-month

sexual relationship with the patient. Recommended Order, at p. 22
- -------39,—In-eontrast7-Respendents-sexual.-aetivity-here-extended-over-a------ -one-year period. Hearing Transcript, p. 58. • The AU argues that the
two relationships are "roughly" comparable. However, Respondent's
continuous sexual activity with the patient over the course of a year
at his office is not comparable to the activity in Magrann, which
spanned a significantly shorter time period and occurred primarily
outside the physician's office. Most significantly, during hiS year-long
sexual relationship with the patient in this matter, Respondent
continued to treat the patient for depression and anxiety.
6

8

 21. Considering the foregoing factors established In the
record, the Department takes exception to the recommended penalty
set forth in the Recommended Order. The Department respectfully
requests that the penalty be increased to an administrative fine of
$10,000, suspension for two years subject to conditions upon
reinstatement, permanent licensure restriction, which should include
a requirement that Respondent have a female chaperone licensed by
the Florida Department of Health present during any examination or
treatment of female patients, and a reprimand of Respondent's
license.
WHEREFORE, the Department moves that the penalty be
increased as requested herein and as supported by the record.

(Signatures follow on the next page)

7

 Respectfully submitted,

Yolanda Y. green
Assistant General Counsel
Florida Bar #0738115
Mary Miller
Assistant General Counsel
Florida Bar #0780420
DOH Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65
Tallahassee, FL 32399-3265
(850) 245-4444, x 8128
(850) 245-4683 fax
Yolonda.green0Ohealth.gov
CERTIFICATE OF SERVICE •
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by electronic mail to David Spicer, Esq.,
at, d.spicer©davidspicerlaw.com, and Jonathan W. Chambers at,
jchambers@davidspicerlaw.com, on this 14th day of August, 2014.
c
Yolonda Y. Gr n
Assistant General Counsel
DOH Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65
Tallahassee, FL 32399-3265
Florida Bar #0738115
(850) 245-4444, x 8128
(850) 245-4683 fax
yolonda.green@flhealth.gov •
8

 00/22/2014 16:39

From:

STATE OF FLORIDA
BOARD OF OSTEOPATHIC MEDICINE

FILED

DEPARTMENT OF HEWN
DEPUTY CLERK
CLERK:

DEPARTMENT OF HEATH, BOARD OF
OSTEOPATHIC MEDICINE,

#096 P.002/047

614; Comma

DATE

AUG 2 2 2014

PETITIONER,
DOAH No. 13-4756PL
DOH No. 2012-00680

vs.
DAVID SIMON, D.O.,
RESPONDENT.

RESPONDENT'S RESPONSE TO PETITIONER'S
EXCEPTION TO PENALTY AND MOTION TO INCREASE PENALTY
Respondent, DAVID SIMON, D.O., by and through his undersigned counsel, and pursuant
to Florida Statute 120.57 and 28-106.217, Florida Administrative Code, files his Response to
Petitioner's Exception to Penalty and Motion to Increase Penalty', and in support thereof states as
follows:
1.

A formal administrative hearing was held in this matter on May 21, 2014 in

Tallahassee, Florida with one witness appearing by video conference from West Palm Beach,
Florida.
2.

On July 30, 2014 the Administrative Law Judge entered a Recommended Order. A

copy of the Recommended Order is attached hereto at Exhibit "A".
3.

The Administrative Law Judge recommended that the Board of Osteopathic Medicine

enter a Final Order imposing a penalty of a $10,000.00 administrative fine and probation for two
years subject to such reasonable terms and conditions as the Board deems appropriate.

 OB/22/2014 16:39

From

0095 P.003/047

RE: DOH/SIMON
Case Number: Case No. 13-4756PL
Page 2
Recommended Order, p. 26. •
4.

Petitioner filed its Exception to Penalty and Motion to Increase Penalty ("Exception")

on August 14, 2014. A copy of the Exception and Motion is attached hereto as Exhibit "B",
5.

In filing exceptions, the party must identify the legal basis for the exception, citing

to the disputed portion of the recommended order by page number and paragraph, and also including
any appropriate and specific citation to the record. Rule 28-106.217, Florida Administrative Code.
6.

In order for the Board of Osteopathic Medicine to reduce or increase the penalty

recommended by the Administrative Law Judge, it must review the entire record and state with
particularity its reason for modifying the penalty citing to the specific portion of the record justifying
the action. Fla. Stat. 120.47(1)(1).
7.

Petitioner contends that the Administrative Law Judge "determined that the nature

of Respondent's violations did not warrant a penalty towards the top of the penalty guidelines."
Exception, p. 4, ¶ 1 1 . Petitioner's statement is misleading. The Administrative Law Judge did not
merely come to that simple conclusion but rather conducted a detailed and thorough legal analysis
applying the findings of facts of the instant case with the facts of other cases involving similar
situations. Recommended Order, p. 22, ¶ 39; p. 24, ¶ 42.
8.

Petitioner contends that there are "compelling reasons" to increase the recommended

penalty. Exception, p. 4, ¶ 12. Petitioner's conclusory contention that the record contains
"compelling reasons" to increase the recommended penalty does not amount to a "legal basis" for
an exception, nor does Petitioner cite to any portion of the record or recommended order as required
by Florida Administrative Code to support this conclusory statement. Petitioner's Exception is

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RE: DOH/SIMON
Case Number: Case No. 13-4756PL
Page 3
devoid of any actual reasoning or particular citations to the record that would justify the Board
modifying the Recommended Penalty. Instead Petitioner cites to several aspects of the record but
fails to connect the dots as to why those aspects of the record justify variance from the
Recommended Order.
9.

Petitioner states that the record "indicates that the initial steps ofRespondent's sexual

relationship with the patient in this matter occurred during a medical examination oldie patient".
Exception, p. 4,1113. The Administrative Law Judge expressly found and concluded that the patient
and Respondent engaged in a consensual relationship, the inception of which happened to occur
at the Respondent's office. Recommended Order, p. 4, I 4; p. 22, ¶ 39; p. 25, ¶ 42. The
Administrative Law Judge further explain that Respondent in no way used the patient's office visit
to induce the patient to begin a sexual relationship with him. ILL
10.

Petitioner argues that the fact that Respondent used his cell phone to communicate

with the patient justifies an increase in penalty. Exception, p. 4,11 14. The fact that Respondent used
his cell phone is irrelevant, having absolutely no bearing whatsoever on the applicable statutes or
administrative code.
11.

Petitioner contends that the location of the sexual encounters justifies a higher

penalty. Exception, p. 5,1115. This assertion is directly contrary to the factual findings made by the
Administrative Law Judge. The Administrative Law Judge found "the location of the assignations
at issue, the doctor's office, is not as telling as it might seem at first blush. Simon had reasons for
not wanting to be seen in public with C.K., and his office provided a convenient place for C.K. and
him to meet secretly and discreetly." Recommended Order, p. 27, endnote 2. Petitioner does not

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RE: DOH/SIMON
Case Number: Case No. 13-4756PL
Page 4
provide any legal basis as to why the location of the encounters justifies an increase in penalty.
Further, Florida Statute 495.0151(1) does not include any provision regarding the location of the
encounters, nor do the disciplinary guidelines provide any legal basis for increasing penalty based
on the location of the encounters. Petitioner cites to this part of the record to attempt to inflame the
facts but fails to provide any legal basis to argue that the Administrative Law Judge's failed to
properly weigh or evaluate this finding of fact in deriving his recommended discipline.
13.

Petitioner argues that the Administrative Law Judge found that "the patient's inability

to consent to the sexual activity stemmed from Respondent's powerful influence over the patient as
her physician" justifies an increase in penalty. Exception, p. 5, ¶ 16. This finding was not specific
to the facts of this particular case but was instead part of the Adminiitrative Law Judge's general
legal analysis in construining Florida Statute section 495.0151(1). Recommended Order, p. 5, ¶ 7;
p. 8 ¶ 15. Specifically, the Administrative Law Judge explained "this finding is a function of the
conclusive presumption of incapacity established in Section 495.0151 (1) Florida Statutes."
Recommended Order, p.27, endnote 3. As such, it was not a specific finding of fact in this case
pertaining to any conduct on behalf of the Respondent. To the contrary, the Administrative Law
Judge found that the sexual enounteres between Respondent and the patient were entirely consensual
between two adults. Recommended Order, p. 4, ¶ 4; p. 5, ¶ 7; p. 6, 119; p. 22, 1139; p. 25, ¶ 42.
Again, Petitioner does not provide any legal basis to argue that the Administrative Law Judge's
failed to properly weigh or evaluate this finding of fact in deriving his recommended discipline.
14.

Petitioner argues that the sexual relationship continued in conjunction with the

E,...tmtism, p. 5, 118.
physician-patient relationship and therefore an increase in penalty is justified.,

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RE: DOH/SIMON
Case Number: Case No. 13-4756PL
Page 5
However, the Administrative Law Judge specifically found:
C.K. and Simon did not have sexual relations during, or as part of, any visit that C.K. made
to Simon's office for the purpose of seeking medical advice or care. In other words, doctor's
appointments did not provide occasions, or serve as cover, for intimate rendezvous. There
is no persuasive evidence that Simon ever tried to convince C.K. that their sexual encounters
would be therapeutic or were somehow part of a course of purported medical treatment or
examination. Rather, Simon testified credibly (and it is found) that he and C.K. kept their
personal and professional relationships separate and distinct." Recommended Qrdet, p. 5,
¶8
Further, Petitioner makes reference to a portion of the hearing transcript containing
information that the Respondent diagnosed the patient with depression, bulimia and anxiety and
prescribed Ability, Seroquel and Prozac to the patient. Exception, p. 5,1 18. The Administrative
Law Judge made no finding as to the relevance or significance of these diagnoses or prescriptions
and, more significantly, Petitioner presented no evidence that these diagnoses or prescriptions in any
way related to the allegations in this case or in any way justify an increase in penalty.
15.

Petitioner has taken issue with the Administrative Law Judge's finding that this case

is comparable to Department of Health v, Magrann, Case No. 02-4826PL (Fla. DOAH Aug. 5,
2003), rejected in part, Case No. 2000-14334 (Fla. DOH Sept. 22, 2003). Exception, p. 6, ¶ 19.
Petitioner states that the facts of Magrann make it distinguishable from this case. Id. However, the
Administrative Law Judge performed and provided a detailed analysis and comparison applying the
facts of this case to the facts of Magrann. Recommended Order, p. 22,T¶ 39-41. Petitioner attempts
to reject the Administrative Law Judge's thorough legal analysis and distinguish the instant case
from Magrann on the basis that the Respondent's sexual activity here extended over a longer period
of time than the sexual relationship in Magrann. Exception, p. 6, ¶ 20. However, the Administrative

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RE: DOH/SIMON
Case Number: Case No. 13-4756PL
Page 6
Law Judge made a specific finding that while the relationship in this case spanned over a longer
duration, the actual encounters in the Magrann case were more frequent. Recommended Order, P.
22, 'V 39-41. Petitioner further attempts to distinguish the Magrann case by alleging that the sexual
activity there occurred outside of the physician's office. Exception, p. 6, ¶ 20. However, the
Administrative Law Judge found that the doctor in the Magrann case actively pursued his "initially
reluctant patient with increasingly transparent ploys, resorting eventually, during an ostensible
medical examination, to a risky hands-on approach which subjected to his patient to unsolicited
kissing and sexual touching, making her nervous and uncomfortable." Recommended Qrder, p. 22,
'1140. The Administrative Law Judge compared those facts to the findings of fact of the instant case
and held "at a minimum, it cannot fairly be concluded that Simon's conduct was worse than that of
the physician in Magrann. Id. Therefore, Simon's punishment for the same offense arising from
equivalent if not less blameworthy circumstances should be in line with the discipline imposed in
the earlier case." id,.
16.

In sum, Petitioner's Exception to Penalty and Motion to Increase Penalty is legally

insufficient and does not provide the Board of Osteopathic Medicine with sufficient justification to
increase the recommended penalty of the Administrative Law Judge by citing with particularity to
the record. Petitioner's Exception is merely a disagreement over the severity of the Administrative
Law Judge's recommended penalty and an attempt to inflame portions of the record that the
Administrative Law Judge carefully considered in reaching his conclusions of law and
recommendations. Petitioner has not cited to any particular support in the record that provides a
legal basis necessary to justify increasing the Administrative Law Judge's recommended penalty.

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*095 P.008/047

RE; DOH/SIMON
Case Number: Case No. 13-4756PL
Page 7
WHEREFORE, Respondent, DAVID SIMON, D.O., respectfully requests that Petitioner's
Exception to Penalty and Motion to Increase Penalty be denied.
I HEREBY CERTIFY that a true and correct copy of the above foregoing was furnished by
email this

day of August, 2014, to:

Mary S. Miller, Esq.
Yolonda Y. Green, Esq.
Assistant General Counsels
DOH Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65
Tallahassee, FL 32399-3265
Mary.Miller2@flhealth.gov
Yolanda.Greeneflhealth.gov.
LAW OFFICES OF DAVID W. SPICER, P.A.
Counsel for Respondent
11000 Prosperity Farms Road, Suite 104
Palm Beach Gardens, FL 33410-3477
(561) 625-6066-Telephone
(561) 625-6016-Facsimile
d.spicer(@.davidspicerlaw.corn

David .,Spicer,
Florida Bar #

 FILED
DEPARTMENT OF HEALTH
DEPUTY CLERK

STATE OF FLORIDA
DEPARTMENT OF HEALTH

CLERK Anael Sanders
DATE. NOV 0 3 2.014

DEPARTMENT OF HEALTH,

Petitioner,
v.

CASE NO.: 2012-00680
DOAH CASE NO.: 13-4756PL

DAVID SIMON, D.O.,
Respondent.

I
MOTION TO BIFURCATE AND RETAIN JURISDICTION
TO ASSESS COSTS IN ACCORDANCE WITH
SECTION 456.0721 FLORIDA STATUTES (2014)
The Department of Health, by and through undersigned counsel
requests that the Board of Osteopathic Medicine enter an Order bifurcating
the issue of costs and retaining jurisdiction to assess costs, against
Respondent for the investigation and prosecution of this case in
accordance with Section 456.072(4), Florida Statutes (2014). Petitioner
states the following in support of this Motion:
1. At its next regularly scheduled meeting, the Board of
Osteopathic Medicine will take up for consideration the above-styled
disciplinary action and will enter a Final Order therein.

 2.

Pursuant to Section 120.569(2)(1), Florida Statutes (2014), the

Final Order in a proceeding heard by an administrative law judge, which
affects a party's substantial interest, must be rendered within ninety (90)
days after a Recommended Order is submitted to an agency, unless the
ninety (90) days is waived by the Respondent.
3.

Section 456.072(4), Florida Statutes (2014), states as follows:
In addition to any other discipline imposed through final
order, or citation, entered on or after July 1, 2001,
pursuant to this section or discipline imposed through
final order, or citation, entered on or after July 1, 2001,
for a violation of any practice act, the board, or the
department when there is not board, shall assess costs
related to the investigation and prosecution of the case.
The costs related to the investigation and prosecution
include, but are not limited to, salaries and benefits of
personnel, costs related to the time spent by the attorney
and other personnel working on the case, and any other
expenses incurred by the department for the case. The
board, or the department when there is no board, shall
determine the amount of costs to be assessed after its
consideration of an affidavit of itemized costs and any
written objections thereto . . (emphasis added)

4.

In order for the Board to assess costs against the Respondent,

under the current case law, the Department is required to obtain an
outside expert attorney's opinion verifying the reasonableness of the time
spent by the Department's attorneys on this matter or the amount of fees

2

 sought. Georges v. Department of Health, 75 So. 3d 759 (Fla. 2nd DCA
2011).
5.

In order for the Board to assess costs against the Respondent,

under the current case law, the Department is also required to verify
attorney's time spent on the case and prepare supporting affidavits for the
amount of attorney's time sought to be recovered. Georges v. Department
of Health, 75 So. 3d 759 (Fla. 2nd DCA 2011).
6.

The Department needs additional time to verify its attorneys'

time expended on the case and obtain an outside expert attorney's opinion
verifying the reasonableness of the time spent by the Department's
attorneys on this matter or the amount of fees sought.
7.

The bifurcation of the issue of cost recovery by the Department

and its postponement to a later date will not cause any undue hardship to
the Respondent as it will not delay the date at which a Final Order on the
disciplinary penalty would be entered against Respondent.
8.

Petitioner requests that the Board grant this motion, bifurcate

the issue of assessment of costs and retain jurisdiction to assess costs
against Respondent once the Department has obtained an outside expert
attorney's opinion verifying the reasonableness of the time spent by the

3

 Department's attorneys on this matter or the amount of fees sought,
obtains supporting affidavits for the amount of attorney's time sought to be
recovered and files a motion to assess costs to be consider by the Board of
Osteopathic Medicine.
WHEREFORE, the Department of Health requests that the Board of
Osteopathic Medicine enter an Order bifurcating the issue of cost
assessment and retaining jurisdiction to assess costs against Respondent.
Respectfully submitted this 3 day of

Peca,w740--,

Yolonda Green
Assistant General Counsel
DOH Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65
Tallahassee, Florida 32399-3265
Florida Bar No.: 0738115
T: (850) 245 - 4444 ext. 8128
F: (850) 245 - 4683
E: yolonda.green@flhealth.gov

2014.

 CERTIFICATE OF SERVICE
I CERTIFY that a true and correct copy of the foregoing has been
furnished via certified mail to on David Spicer, 11000 Prosperity Farms Rd,
Suite 104, Palm Beach Gardens, FL
33410 this 3
day of
2014.
PcMPAA/I[a"

Yolol a Y. reen
Assistant General Counsel

 STATE OF FLORIDA
DEPARTMENT OF HEALTH
DEPARTMENT OF HEALTH,
PETITIONER,
CASE NO. 2012-00680

v.
DAVID SIMON, D.O.,
RESPONDENT.

•/
ADMINISTRATIVE COMPLAINT
COMES NOW Petitioner, Department of Health, by and through its
undersigned counsel, and files this Administrative Complaint before the
Board of Osteopathic Medicine against Respondent, David Simon, D.O.,
and in support thereof alleges:
1.

Petitioner is the state agency charged with regulating the

practice of osteopathic medicine pursuant to Section 20.43, Florida
Statutes; Chapter 456, Florida • Statutes; and . Chapter 459, Florida
Statutes.
2.

At all times material to this Administrative Complaint,

Respondent was a licensed osteopathic physician within the State of
Florida, having been issued license number OS 4930.

 3.

Respondent's address of record is 101 South Federal Highway,

Lake Worth, Florida 33460.
4.

At all times material to this Administrative Complaint,

Respondent was a family doctor with an office located at 101 South
Federal Highway, Lake Worth, Florida 33460.
5.

At all times material to this Administrative Complaint, Patient

C.K., a thirty-seven (37) year old female, was Respondent's patient.
6.

In or about January of 2005, through in or about December of

2011, Patient C.K. presented to Respondent's office for various medical
treatment.
7.

In or about November of 2010, through in or about December

of 2011, Respondent used his relationship with Patient C.K. to engage in.
sexual activity with Patient C.K. at Respondent's office.
8.

Section 459.015(1)(pp), Florida Statutes (2010, 2011), provides

that violating any provision of this chapter or chapter 456, or any rules
adopted pursuant thereto is grounds for disciplinary action.
COUNT ONE
9.

Petitioner realleges and incorporates paragraphs one (1)

through eight (8), as if fully set forth herein.
DOH v. David Simon, D.O.
Case No. 2012-00680

2

 .10. Section 459.0141, Florida Statutes (2010, 2011), provides that
sexual misconduct in the practice of osteopathic medicine means violation
of the osteopathic physician-patient relationship through which the
osteopathic physician uses the relationship to induce or attempt to induce
the patient to engage, or to engage or attempt to engage the patient, in
sexual activity outside the scope of the practice or the scope of generally
accepted examination or treatment of the patient.
11.

Respondent engaged in. sexual misconduct in the practice of

osteopathic medicine by using Respondent's relationship with Patient C.K.
to engage in sexual activity with Patient C.K. at Respondent's office.
12.

Based on the foregoing, Respondent violated Section

459.015(1)(pp), Florida Statutes (2010, 2011), by ,violating Section
459.0141, Florida Statutes (2010, 2011), by engaging in sexual
misconduct in the practice of osteopathic medicine means violation of the
osteopathic physician-patient relationship through which the osteopathic
physician uses the relationship to induce or attempt to induce the patient
to engage, or to engage' or attempt to engage the patient, in sexual
activity outside the scope of the practice or the scope of generally
accepted examination or treatment of the patient.
DOH v. David Simon, D.O.
Case No, 2012-00680

3.

 COUNT TWO
13.

Petitioner realleges and incorporates paragraphs one (1)

through eight (8), as if fully set forth herein.
14.

Section 459.015(1)(1), Florida Statutes (2010, 2011), provides

that exercising influence within a patient-physician relationship for
purposes of engaging a patient in sexual activity constitutes grounds for
disciplinary action. A patient shall be presumed to be incapable of giving
free, full, and informed consent to sexual activity with his or her physician.
15.

Respondent exercised influence within a patient-physician

relationship for purposes of engaging a patient in sexual activity by using
Respondent's relationship with Patient C.K. to engage in sexual activity with
Patient C.K. at Respondent's office.
16, Based on the foregoing, Respondent violated 459.015(1)(1),
Florida Statutes (2010, 2011), provides that exercising influence within a
patient-physician relationship for purposes of engaging a patient in sexual
activity constitutes grounds for disciplinary action. A patient shall be
presumed to be incapable of giving free, full, and informed consent to
sexual activity with his or her physician.

DOH v. David Simon, D.O.
Case No, 2012-00680

4

 WHEREFORE, the Petitioner respectfully requests that the Board of
Osteopathic Medicine enter an order imposing :one or more of the
following penalties: permanent revocation or suspension of Respondent's
license, restriction of practice, imposition of an administrative fine,
issuance of a reprimand, placement of the Respondent on probation,
corrective action, refund of fees billed or collected, remedial education
and/or any other relief that the Board deems appropriate.

SIGNED this

j jr'

day of

2013.

John H. Armstrong, MD, FACS
State Surgeon General and
Secretary of Health

FILED
DEPARTMENT OF HEALTH
DEPUTY CLERK
CLERK Anger Sanders
DATE

JUL 1 1 2013

Casey Cowan
Assistant General CoUnsel
Fla. Bar No. 0035536 •
Florida Department of Health
Office of the Gene'ral Counsel
4052 Bald Cypress Way, Bin #C65
Tallahassee, FL 32399-3265
Telephone: (850). 245 4444 •
Facsimile: (850) 245-4683
Email: casey_cowan@doh.state.fl.us

/CLC
PCP:
PCP Members: Andrioie r Maul
DOH v. David Simon, D.O.
Case No. 2012-00680

1
1

5

 NOTICE OF RIGHTS
Respondent has the right to request a hearing to be
conducted in accordance with Section 120.569 and 120.57,
Florida Statutes, to be represented by counsel or other qualified
representative, to present evidence and argument, to call and
cross-examine witnesses and to have subpoena and subpoena
duces tecum issued on his or her behalf if a hearing is requested.
NOTICE REGARDING ASSESSMENT OF COSTS
Respondent is placed on notice that Petitioner has incurred
costs related to the investigation and prosecution of this matter.
Pursuant to Section 456.072(4), Florida Statutes, the Board shall
assess costs related to the investigation ' and prosecution of a
disciplinary matter, which may include attorney hours and costs,
on the Respondent in addition to any other discipline imposed.

DOH v. David Simon, D.O.
Case No. 2012-00680

12

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