STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

vs. ) CASE NO. 89-2120

)

JOSE MINAYA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 7, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David G. Plus, Esquire

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: No Appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the administrative complaint?

   
   

2. If so, what penalty should be imposed?

PRELIMINARY STATEMENT

On November 1, 1988, Petitioner issued an administrative complaint alleging that disciplinary action should be taken against Respondent's license to practice medicine in the State of Florida based on the revocation of his license to practice medicine in the State of New York. Respondent requested a formal hearing on the complaint. On April 21, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Respondent had requested.

Although Respondent was given notice of the hearing in accordance with the provisions of Section 120.57(1)(b)2., Florida Statutes, neither Respondent nor anyone acting on his behalf made an appearance at hearing. Petitioner appeared at hearing through counsel, but presented no testimony. Its case against Respondent consisted exclusively of documentary evidence. Among the exhibits

offered and received into evidence was a certified copy of the order revoking Respondent's medical license in New York State.

At the close of the hearing, upon being advised that Petitioner would be furnishing him a copy of the transcript of the hearing, the Hearing Officer announced on the record that post-hearing pleadings had to be filed no later than ten days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received a copy of the hearing transcript on November 15, 1989. Petitioner filed a proposed recommended order on November 27, 1989.

Petitioner's proposed recommended order contains proposed findings of fact. These proposed findings of fact have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing pleading.

FINDINGS OF FACT

Based on the record evidence, the Hearing Officer makes the following Findings of Fact:

1. Respondent has been licensed to practice medicine in the State of Florida since September 4, 1970.

   
   

2. Respondent was formerly licensed to practice medicine in the State of New York. By order issued July 3, 1987, by the New York Commissioner of Education, Respondent's New York license was revoked on the ground that he had been convicted of committing an act constituting a crime under the law of another jurisdiction, which, if committed in New York State, would have constituted a crime under New York State Law, in that:

   
   

   On or about January 18, 1984, in the Superior Court of California, County of Los Angeles, in the People of the State of California v. Jose Minaya (No. A344 720), aff'd No. B005332 (Ct. of Appeals, 2nd App. Dist., Oct. 1985), the Respondent, following a jury trial, was convicted of one count of grand theft and six counts of filing false Medi-Cal claims.

   
   

   Upon his conviction, Respondent was sentenced to four years imprisonment, was fined $10,000 for each of the six counts of filing false Medi-Cal claims, and restitution to the State of California was imposed in the sum of

   $14,866.80.

   
   

3. The convictions which resulted in the revocation of Respondent's New York license were more specifically described as follows in the California appellate court opinion referenced in the Education Commissioner's July 3, 1987, order:

   
   

   [Respondent], specializing in ophthalmology, was charged and convicted primarily of filing falsified Medi-Cal treatment authorization requests

   (hereinafter referred to as TARs) in order to obtain permission to perform elective cataract surgeries on Medi-Cal beneficiaries. The People of California proved that the cataract surgeries were not medically justified and that the TARs were falsified by the appellant himself or at his direction, so that he could obtain payment from the state by false pretenses.

   * * *

   Count VIII, grand theft, was proven by the People as larceny by false pretense for the accumulation of all monies received from the surgeries performed on the Medi-Cal recipients named in the false claims counts.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Board of Medicine is statutorily empowered to take disciplinary action against a physician licensed to practice medicine in the State of Florida if the physician has had a "license to practice medicine revoked, suspended or otherwise acted against, including the denial of licensure, by the licensing authority of any [other jurisdiction].," Section 458.331(1)(b) , Fla. Stat.

   
   

5. If the Board determines that a Florida physician has been the subject of such disciplinary action by the licensing authority of another jurisdiction, it may impose one or more of the following penalties: revocation or suspension of the physician's Florida medical license; restriction of his practice; imposition of an administrative fine of not more than $5,000; issuance of a reprimand; and placement of the physician on probation. Section 458.331(2), Fla. Stat.

   
   

6. In selecting the appropriate punishment, the Board is obligated to follow the disciplinary guidelines set forth in Florida Administrative Code Rule 21M-20.001. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988) (agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees). Rule 21M-

   20.001 mandates that, unless mitigating or aggravating circumstances are present, the Board impose a penalty within the following range: From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $250.00 to $5,000.00."

   
   

7. The mitigating and aggravating circumstances that the Board may take into consideration in deciding whether to impose a penalty outside this range are enumerated in Rule 21M-20.001(3). They are as follows:

   
   

   1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe or death;

   2. Legal status at the time of the offense: no restraints, or legal restraints;

      
      

   3. The number of counts or separate offenses established;

      
      

   4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

      
      

   5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

      
      

   6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

      
      

   7. Any other relevant mitigating factors.

      
      

8. In the instant case, Petitioner has established by clear and convincing evidence that Respondent's license to practice medicine in the State of New York was revoked by the licensing authority in that state, as charged by the administrative complaint filed against him by Petitioner. Accordingly, the Board has cause to take disciplinary action against his Florida license.

   Section 458.331(1)(b), Fla. Stat.

   
   

9. Given the extremely serious nature of the criminal conduct upon which the revocation of his New York license was based and the absence of any compelling mitigating circumstances, the application of the disciplinary guidelines prescribed in Florida Administrative Code Rule 21M-20.001 to the facts of the instant case should result in a determination by the Board that the appropriate punishment in this case is the revocation of Respondent's license to practice medicine in the State of Florida.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license to practice medicine in the State of Florida based upon the revocation of his New York license.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of November, 1989.

STUART M. LERNER

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 29th of November, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2120

The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case:

1. Rejected because it is more in the nature of a conclusion of law than a finding of fact.

   
   

2. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

   
   

3. Accepted and incorporated in substance.

   
   

4. Accepted and incorporated in substance.

   
   

5. Accepted and incorporated in substance.

   
   

6. Rejected because it is more in the nature of a conclusion of law than a finding of fact.

COPIES FURNISHED:

David G. Pius, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jose Minaya, M.D.

536 North 19th Street Montebello, California 90640

Jose Minaya, N.D. c/o Carlos Lorente 1018 Cyrus Lane

Arcadia, California 91006

Jose Minaya, N.D. c/o P.A. Boyens Parole Agent II

9500 Norwalk Boulevard

Santa Fe Springs, California 90670

Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth D. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 89-002120

Orders for Case No: 89-002120