STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 97-0864

) MICHAEL ANDREW FUENTES, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge Don W. Davis, held a formal hearing in the above-styled case on September 10, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Carol Lanfri, Esquire

Agency For Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.

PRELIMINARY STATEMENT

By Administrative Complaint issued February 6, 1997, Petitioner alleged that Respondent had violated Section 458.331(1)(b), Florida Statutes, by having a license to practice medicine subjected to discipline in the states of Connecticut and Pennsylvania; and that

Respondent had violated Section 458.331(1)(kk), Florida Statutes, by failing to report those disciplinary actions to Petitioner's Board of Medicine within 30 days.

Upon Respondent’s request, the matter was subsequently transferred to the Division of Administrative Hearings for conduct of formal hearings pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented three exhibits which were admitted into evidence. Respondent did not appear, and no evidence was presented on his behalf.

No transcript of the final hearing was provided by the parties.

Proposed findings of fact were submitted by Petitioner and have been reviewed in the course of preparing this Recommended Order. Respondent submitted no proposed findings.

FINDINGS OF FACT

1. Respondent is Michael A. Fuentes, M.D., a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0044461. Respondent's last known address is 311 Akron Avenue, Pittsburgh, Pennsylvania 15216.

2. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Chapter 458, Florida Statutes.

3. The Pennsylvania State Board of Medicine is the licensing authority for the State of Pennsylvania.

4. The Connecticut Board of Medicine is the disciplining body for the State of Connecticut.

5. On or about July 27, 1994, the Pennsylvania State Board of Medicine indefinitely suspended Respondent’s license to practice

   medicine and then stayed that suspension while placing Respondent on five year's probation. The Board found Respondent to be an impaired physician who had been non-compliant with treatment recommendations.

   
   

6. On or about August 26, 1996, the Pennsylvania State Board of Medicine, reviewed its earlier decision and shortened the probationary period to three years. Respondent did not report the Pennsylvania State Board of Medicine’s action in either instance to Petitioner’s representatives in the State of Florida.

7. On October 19, 1993, the Connecticut Board of Medicine summarily suspended Respondent’s license to practice medicine due to his mental impairment and failure to undergo a complete psychiatric evaluation. Subsequently, on or about June 20, 1995, the Board revoked Respondent’s license to practice medicine in Connecticut. Respondent did not report the Connecticut State Board of Medicine's action in either instance to Petitioner's representatives in the State of Florida.

8. Respondent is guilty of having action taken against his license to practice medicine by the licensing authorities of the State of Pennsylvania and the State of Connecticut, violations of Section 458.331(1)(b), Florida Statutes. Additionally, Respondent did not notify the Florida Board of Medicine within 30 days of the

   license disciplinary actions taken by either the State of Pennsylvania or the State of Connecticut against his license, notifications required by Section 458.331(1)(kk), Florida Statutes.

   CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

10. Section 458.331(2), Florida Statutes, authorizes the Board of Medicine to take disciplinary action against the license of any physician found in violation of provisions of Section 458.331(1). Sanctions which the Board may impose include revocation or suspension of a license, restriction of the licensee's practice, imposition of an administrative fine not to exceed 5,000 dollars per count of the Administrative Complaint, issuance of a reprimand, issuance of a letter of concern, and placement of the offending physician's license on probation for a period of time subject to such conditions as the Board may desire.

11. Petitioner bears the burden of proof of the charges set forth in the Administrative Complaint in this case. Since a final determination of Respondent's culpability could result in the imposition of discipline with regard to Respondent's license, the proof that Respondent has committed those violations must be clear and convincing. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. The Administrative Complaint in this case alleges in Count One that Respondent has violated Section 458.331(1)(b), Florida Statutes, by having a license or authority to practice medicine

    revoked, suspended, or otherwise acted against by the licensing authority of any jurisdiction. Respondent is guilty of this offense with regard to both the State of Pennsylvania and the State of Connecticut.

13. Count Two of the Administrative Complaint alleges dual violations by Respondent of Section 458.331(1)(kk), Florida Statutes, for his failure to report to the Florida Board of Medicine in writing within 30 days the respective disciplinary actions of the States of Pennsylvania and Connecticut with regard to his license to practice medicine in those jurisdictions. Respondent is guilty of Count Two of the Administrative Complaint.

14. Petitioner, having proven the allegations of the Administrative Complaint by clear and convincing evidence, seeks imposition of the ultimate penalty authorized by Section 458.331(2), Florida Statutes, revocation of Respondent’s license. The multiple actions against Respondent’s license in other jurisdictions are aggravating circumstances which, pursuant to Petitioner’s disciplinary guidelines set forth in Rule 64B8-8.001(3), Florida Administrative Code, justify such a result.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of the charges set forth in the Administrative Complaint and revoking his license to practice medicine in the State of Florida.

DONE AND ENTERED this 22nd day of September, 1997, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1997.

COPIES FURNISHED:

Carol Lanfri, Esquire Agency for Health

Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Stephen M. Chizmadia, Esquire

125 Sun Dance Road

Stamford, Connecticut 06905

Michael A. Fuentes

32 Lake Drive

Darien, Connecticut 06820

Michael A. Fuentes c/o The Royal Inn

Route 219, Boot Jack Summit Ridgway, Pennsylvania 15853

Marm Harris, Executive Director Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0770

Pete Peterson, Esquire Department of Health Building 6, Room 102-E 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

James Howell, Secretary Department of Health Building 6, Room 306

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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.

Docket for Case No: 97-000864

Orders for Case No: 97-000864