STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4658

)

VIJAY SAKHUJA, M.D., )

)

Respondent )

)

RECOMMENDED ORDER

Pursuant to duly promulgated notice, this matter came on for hearing before

1. Michael Ruff, duly designated Hearing Officer. The appearances were as follows:

   
   

   APPEARANCES

   
   

   For Petitioner: Jonathan King, Esquire

   State of Florida Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32399-0750

   
   

   For Respondent: No Appearance

   
   

   STATEMENT OF THE ISSUES

   
   

   The issues in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.

   
   

   PRELIMINARY STATEMENT

   
   

   This cause arose upon the filing of an Administrative Complaint by the Petitioner against the Respondent alleging violations of Section 458.331(1)(b) and (1)(c), Florida Statutes. The cause was initially assigned to Hearing Officer Adams, but was transferred to the undersigned Hearing Officer shortly before hearing. The Hearing Officer received a "Notice of Motion to Dismiss the Complaint or in the Alternative for a Stay" after having the case transferred to him approximately four days prior to hearing. In that pleading, the Respondent indicated that he would move at the hearing for an order dismissing the complaint on grounds of "failure to state a cause of action, collateral estoppel and Res Judicata" and, in the alternative, to stay the action "pending the final

   determination of this motion and completion of the discovery as per Florida laws, rules, regulations and statutes..." This "motion" will be addressed in the conclusions of law.

   
   

   The cause came on for hearing as noticed. The Petitioner dismissed Count II of the Administrative Complaint at the hearing, such that the Respondent is thus presently charged with the violation of Section 458.331(1)(b), Florida Statutes only. The Petitioner offered Exhibits 1-3 which were received into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians.

      
      

   2. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.)

      
      

   3. On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1987).

      
      

   5. The "Notice of Motion" referenced supra indicated that the Respondent would actually make the motion to dismiss at the hearing then scheduled to commence four days thereafter. The Respondent failed to appear at the hearing.

      The "motion" should be denied for non-timeliness because, to the extent that it might itself be deemed to constitute a motion to dismiss, the "notice of motion to dismiss" was not timely filed since the case had been pending for more than one year and the hearing was only four days away. Further, the movant filed the pleading less than seven days, the allowable response time, before the hearing, not even taking into account the five days allowable for mailing time. Thus, to the extent that it might be considered to be a motion to dismiss or alternatively a "motion to stay" the proceeding, the movant had an obligation, given the imminence of the hearing, to arrange for a short-notice motion hearing with notice thereof provided to the opposing party. The movant failed to do this. See Rule 22I-6.016 Florida Administrative Code. Finally, to the extent that the "Notice of Motion" and the various attachments thereto, when read together conveys the impression that the Respondent wished to conduct discovery or "further discovery," subpoena witnesses, and the like, and therefore to stay the proceeding until that could be accomplished, the motion is clearly untimely and improper since the Administrative Complaint had been pending more than a year and the cases had been noticed for hearing one time before, with the notice of hearing for the subject hearing being issued almost two months before the hearing date. Thus, the attempted alternative motions to dismiss or to stay the proceedings are untimely and are deemed to have been filed primarily for purposes of delay. Consequently, they respectively should be and are denied.

      
      

   6. Section 458.331(b), Florida Statutes, provides that the Board of Medicine may take the disciplinary action specified in subsection (2) of that section against a Florida licensee who has had his license to practice medicine revoked, suspended or otherwise acted against by the licensing authority of any state. The uncontradicted evidence of record, supportive of the above findings of fact, shows that the Respondent has had his license to practice medicine suspended by the duly empowered licensing authority of the state of New York. The Respondent therefore is in violation of Section 458.331(1)(b), Florida Statutes. The Petitioner has recommended that the Respondent be found guilty of violating Sections 458.331(1)(b), Florida Statutes and that his license be suspended until such time as he can demonstrate to the Board of Medicine that he is capable of practicing medicine with care, skill and safety to patients and demonstrating that his license to practice medicine in New York is reinstated and no longer restricted.

RECOMMENDATION

Accordingly, it is therefore

RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less.

DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1989.

COPIES FURNISHED:

Jonathan King, Esquire Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0729

Vijay Sakhuja, M.D.

120 Secor Drive

Port Washington, New York 11050

Vijay Sakhuja, M.D.

90-10 Sutphin Boulevard Jamaica, New York 11435

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0729

Kenneth Easley, General Counsel Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0729

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 89-2296

DOAH CASE NO. 88-4658

DEPARTMENT OF PROFESSIONAL REGULATION,

Appellee.

/ Opinion filed October 10, 1990.

Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant.

Lisa S. Nelson, Department of Professional Regulation, for appellee.

WENTWORTH, J.

Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed.

Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so

as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied.

The order increasing the recommended penalty recites that:

Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida.

Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty.

Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989).

The order appealed is reversed and the cause remanded.

MINER and WOLF, JJ., CONCUR.

Docket for Case No: 88-004658

Orders for Case No: 88-004658