STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2529

)

ANDRES BUSTILLO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 9, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Peter S. Fleitman Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Mark A. Dresnick, Esquire

One Biscayne Tower

Two Biscayne Boulevard, Suite 240 Miami, Florida 33131

PRELIMINARY STATEMENT

By administrative complaint dated May 2, 1988, petitioner charged that respondent violated the provisions of Section 458.331(1)(x), Florida Statutes. The gravamen of petitioner's charge is the assertion that respondent failed to submit to a random urine test as required by a final order of the Board of Medicine.

At hearing, petitioner called the respondent and Hugh F. Fitzpatrick as witnesses. Petitioner's exhibits 1-3 were received into evidence. Respondent called Ramon Hernandez and Stanley C. Kaplan as witnesses.

The transcript of hearing was filed July 1, 1988, and the parties were granted leave until July 29, 1988, to file proposed findings of fact.

Petitioner elected to file proposed findings and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Andres Bustillo, was at all times material hereto a licensed medical doctor in the State of Florida, having been issued license number ME 0028924.

   
   

2. Pertinent to this case, the Board of Medicine entered a final order on June 16, 1987, approving the settlement of a prior action brought by the Department of Professional Regulation (DPR) against respondent. Among the conditions of that final order were the following:

   
   

   1. Respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized by law to prescribed (sic) or dispense controlled substances. Drugs authorized by another practitioner shall be consumed, injected, or ingested only for a medically justifiable purpose:

      1. For a period of two (2) years after this Stipulation is accepted by the Board, the Respondent shall:

         1. Submit voluntarily to random urine and/or blood testing for the purpose of ascertaining Respondent's compliance with this Stipulation. Respondent agrees to pay all reasonable costs of obtaining and analyzing these blood or urine samples....

      
      

   2. Shortly after noon, on October 1, 1987, Hugh Fitzpatrick, a DPR investigator, telephoned respondent's office to ascertain whether respondent was present. Upon being advised that respondent was in the office, Fitzpatrick proceeded to respondent's office for the unannounced purpose of securing a urine sample as mandated by the aforementioned final order.

      
      

   3. Fitzpatrick arrived at respondent's office about 12:20 p.m., identified himself as a DPR investigator to a "young lady" standing "behind the transaction window," and asked her to notify the respondent that he was there to see him. The unidentified lady told Fitzpatrick she would tell respondent and closed the window.

      
      

   4. Fitzpatrick seated himself in the waiting room, along with a Spanish couple. Approximately one hour later, the lady returned and, while escorting the couple into the interior office, told Fitzpatrick that she had notified the respondent that he was there. Approximately 10 minutes later the lady returned and informed Fitzpatrick that respondent had an emergency and could not see him.

      
      

   5. Upon being so advised, Fitzpatrick gave the lady one of his business cards, and told her to tell the respondent to contact his office and make an appointment to see him the following day.

      
      

   6. While the respondent offered proof that he was not at his office during the course of Fitzpatrick's visit, I find that the more convincing evidence demonstrates that he was in fact present during at least the latter portion of such visit, and that respondent knew the purpose of that visit.

   7. Whether respondent actually had an emergency that prevented him from seeing Fitzpatrick at that time is not clear from the record. However, because of the promptness of his response to Fitzpatrick, as discussed infra, and his willingness to make himself available the next day, I conclude that there was no untoward motivation attendant to his declining to see Fitzpatrick at that time. 1/

      
      

   8. Upon returning to his office, Fitzpatrick found a message from the "young lady" that respondent was busy seeing patients and that Fitzpatrick would have to make an appointment to see him the following day (October 2, 1987). Fitzpatrick returned the "young lady's" call and told her that:

      
      

      ... I wasn't going to make an appointment and I was with the Department and it was the doctor's responsibility to make an appointment to come see me.

      
      

   9. The proof offered by petitioner to demonstrate what occurred between October 2, 1987, and November 4, 1987, was less than compelling. Fitzpatrick averred that he telephoned respondent's office a number of times during that period and never received a response from him. Notably, however, Fitzpatrick's investigative report contains no record of any such calls.

      
      

   10. Respondent avers that he telephoned Fitzpatrick on October 2, 1987, was advised he was not in, left a message, and never heard from him again until November 4, 1987. In the interim, respondent had contacted his attorney, Stanley Kaplan, who advised him to tell Fitzpatrick, if he should call again, to call him. On November 4, 1987, when Fitzpatrick called respondent's office, he was referred to Mr. Kaplan. Under the circumstances, respondent's testimony is credited.

       
       

   11. On November 5, 1987, at approximately 12:15 p.m., Fitzpatrick telephoned Mr. Kaplan. Mr. Fitzpatrick refused to have the sample taken at the respondent's office or Mr. Kaplan's office, and insisted that the sample be taken at his office. Mr. Kaplan contacted the respondent and subsequently advised Fitzpatrick that he could be at the DPR offices about 5:30 p.m. to give the sample. Fitzpatrick refused because it was too late in the day for him, and suggested the next morning. Mr. Kaplan again contacted the respondent and subsequently told Fitzpatrick that the earliest respondent could make it to the DPR office on November 6, 1987, was 5:30 p.m. Mr. Kaplan then suggested Monday morning, since Fitzpatrick declined to take the sample over the weekend. Fitzpatrick advised Mr. Kaplan he would have to contact the Board's attorney.

       
       

   12. Following his inquiry with the Board's attorney, Fitzpatrick told Mr. Kaplan that the sample had to be taken by 5:00 p.m. that day (November 5, 1987) or "forget it." Mr. Kaplan told Fitzpatrick that they could not be at the DPR offices by that deadline and was told by Fitzpatrick that, in such event, an administrative complaint would issue.

       
       

   13. On May 2, 1988, some six months later, the subject administrative compliant issued along with an emergency order of suspension. Shortly thereafter, the parties agreed to lift the emergency suspension pending the resolution of the administrative complaint and upon the condition that respondent report to DPR's office on a weekly basis to give a urine sample.

       Since early May 1988, respondent has abided this condition, and his urine has tested clean of any controlled substances.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   15. The allegations in this case are that respondent violated Section 458.331(1)(x), Florida Statutes, by refusing to submit voluntarily to a random urine test as mandated by the Board's order of June 16, 1987. That section authorizes petitioner to take disciplinary action against a physician who has:

       
       

       Violated... a lawful order of the board or department previously entered in a disciplinary hearing....

       
       

   16. Under existing law, the burden is on the petitioner to demonstrate by clear and convincing evidence that respondent violated the provisions of Section 458.331(1)(x), Florida Statutes. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner has failed to sustain its burden of proof.

       
       

   17. While respondent did not submit a urine sample on October 1, 1987, he did offer to make himself available on October 2, 1987, as requested by and acceptable to the DPR investigator. But for the investigator's refusal to go to respondent's office to take the sample, there is no reason to conclude such sample would not have been obtained or that the results would not have been credible. Notably, the Board's final order does not require that the respondent abide an investigator's desires as to where a sample will be taken.

       
       

   18. When the investigator next contacted respondent, on November 4, 1987, he was promptly referred to respondent's lawyer. When he called respondent's lawyer on November 5, 1987, the investigator again refused to visit the respondent's office and insisted that the sample be given at his office. Under the circumstances, respondent's offer to do so at 5:30 p.m. that day was not unreasonable.

       
       

   19. In sum, respondent substantially complied with the Board's order of June 16, 1987, and petitioner has failed to demonstrate a violation of Section 458.331(1)(x), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative

complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1988.

ENDNOTE

1/ Petitioner offered proof that the prior charges against respondent, which were settled with no admission of guilt, concerned the purported use of the drugs secobarbital and cocaine. Secobarbital has a half-life of 3 weeks and cocaine a half-life of 3-4 days. Petitioner also offered proof, through its investigator, that unannounced urine testing is undertaken because there are drugs on the market that could be taken to flush out one's system and give the appearance that no drugs had been taken. In this case, I do not credit such proof or find it persuasive to demonstrate a motivational force for respondent to decline to see Fitzpatrick on October 1, 1987, because there was no showing that drugs existed to "flush out" secobarbital or cocaine and because Fitzpatrick evidenced his satisfaction to testing the respondent the day after he contacted him on October 1, 1987, and on November 4, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2529

Petitioner's proposed findings of fact are addressed as follows:

A.

1-3. Addressed in paragraph 2. B.

1-19. These proposals are predominately recitations of testimony or exhibits and not findings of fact. They are, however, addressed in paragraphs 3-14.

20-21, 44-46. Addressed in footnote 1.

22-43. These proposals are predominately recitations of testimony and not findings of fact. They are, however, addressed in paragraphs 3-14.

47-73. These proposals are predominately recitations of testimony and not findings of fact. They are, however, addressed in paragraphs 3-14.

COPIES FURNISHED:

Peter S. Fleitman, Esquire 9100 South Dadeland Boulevard Suite 1409

Miami, Florida 33156

Jonathan King, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Andres Bustillo, M.D. 777 East 25th Street Suite 404

Hialeah, Florida 33013

Dorothy Faircloth, Executive Director Department of Professional

Regulation Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mark A. Dresnick, Esquire Deborah J. Miller, Esquire

One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131

=================================================================

AGENCY FINAL ORDER

================================================================= DEPARTMENT OF PROFESSIONAL REGULATION

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO. 0091059

DOAH CASE NO. 88-2529

ANDRES BUSTILLO, M.D. LICENSE NO. ME 0028924

Respondent,

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9, Florida Statutes, on October 8, 1988, in Tampa, Florida, for the purpose of considering the Hearing Officer's Recommended Order and Petitioner' Exception to Recommended Order (copies of which are attached hereto as Exhibits A and 8 respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Jonathan King, Attorney at Law.

Respondent was present and represented by Stanley Kaplan, Attorney at Law.

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 FACTS

1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

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

   
   

   RULINGS ON EXCEPTIONS

   
   

   The Board grants Petitioner's Exceptions to the Recommended Order.

   
   

   CONCLUSIONS OF LAW

   
   

   The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

   The Board accepts and adopts the Conclusions of Law set forth in Petitioner's Exceptions to the Recommended Order for the reasons set forth therein and rejects the Conclusions of Law in the Recommended Order which are inconsistent thereto.

   The Conclusions of Law set forth in the Recommended Order which are not inconsistent with the Conclusions of Law adopted above are adopted and incorporated herein.

   
   

   The Board finds that Respondent violated the Board's previous Order on October 1, 1987.

   
   

   There is competent substantial evidence to support the Conclusions of Law adopted by the Board.

   
   

   PENALTY

   
   

   Since the Board has found that Respondent is guilty of violating a lawful order of the Board, which is a violation of Section 458.331(1)(x), Florida Statutes, the Hearing Officer's recommendation that the administrative complaint be dismissed is REJECTED. The Board finds that violation of a disciplinary order of the Board is a serious matter which must be penalized accordingly.

   
   

   WHEREFORE,

   
   

   IT IS HEREBY ORDERED AND ADJUDGED:

   
   

   1. Respondent's license to practice medicine is REPRIMANDED.

      
      

   2. Respondent's license to practice medicine in the State of Florida is SUSPENDED for a period of one year; however, said suspension shall be stayed until or unless a finding of probable cause is made that Respondent has violated any term or condition of this Final Order, at which time the stay will be lifted.

      
      

   3. Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 5 years subject to the following terms and conditions:

      
      

      1. Respondent shall not in the future violate Chapters 455, 458, or 893, Florida Statutes, or the rules promulgated pursuant thereto or any other state or federal law relating to the practice of medicine.

         
         

      2. Respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized by law to prescribe or dispense controlled substances. Drugs authorized by another practitioner shall be consumed, injected, or ingested only for a medically justifiable purpose

         
         

      3. Respondent shall Submit voluntarily to random urine and/or blood testing for the purposes of ascertaining Respondent's compliance with this Order. Respondent agrees to pay all reasonable costs of obtaining and analyzing these blood or urine samples.

         
         

      4. Respondent shall Appear before the Board at their first meeting after rendition of this Order, and semi-annually thereafter during the term of this Order and at such other times as directed by the Board. At these appearances, Respondent shall answer questions, under oath, as posed to him by Board members, counsel for the Board, and counsel for Petitioner.

         
         

      5. In the event Respondent leaves the State of Florida for a period of thirty days or more, or otherwise does not engage in the practice of medicine in

         Florida, Respondent's probation shall be tolled and shall remain in a tolled status until Respondent returns to the active practice in the State of Florida, at which time the probationary status shall resume. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten days of any changes of said addresses.

         
         

      6. Respondent shall submit quarterly reports to the Board by affidavit (the contents which shall be sworn and subscribed to by Rsspondent before a notary public as being true and correct) summarizing his practice activities. Such reports shall contain the following information:

         
         

         1 . Current practice address;

         1. Current practice setting(s);

         2. Drug prescribing, dispensing, and administering activities;

         3. Hospital admitting privileges;

         4. A statement specifically addressing compliance with all the terms and conditions of this Order.

         
         

      7. Respondent understands that semi-annual investigative reports shall be compiled by the Department concerning Respondent's compliance with the terms and conditions of this Stipulation, the Board's Order adopting same and the rules and Statutes regulating the practice of medicine.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 14th day of October, 1988.

The BOARD OF MEDICINE

EMILIO D. ECHEVARRIA, M.D CHAIRMAN

Docket for Case No: 88-002529

Orders for Case No: 88-002529