STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF ) PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NOS. 91-1625

)

ROGER LOPEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 30, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Richard A. Grumberg, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: (Respondent failed to appear)

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Respondent committed the acts alleged in the administrative complaint and, if so, what, if any, disciplinary action should be taken against Respondent's license.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on November 9, 1990. The Administrative Complaint alleged that Respondent violated Section 458.331(1)(x), Florida Statutes, by violating a lawful order of Petitioner previously entered in a license disciplinary proceeding.

Respondent requested a formal hearing by letter dated February 18, 1991.

The matter was referred to the Division of Administrative Hearings on March 14, 1991, for assignment of a hearing officer, and assigned to the undersigned on March 21, 1991. A formal hearing was scheduled for July 30, 1991, pursuant to the Notice of Hearing issued on April 8, 1991.

At the formal hearing, Petitioner presented the testimony of Ms. Dahna Schaublin, Petitioner's investigator, and submitted four exhibits for admission in evidence. Petitioner's Exhibits 1-4 were admitted in evidence without objection. 1/ Respondent failed to appear at the formal hearing.

A transcript of the record of the formal hearing was requested by Petitioner and filed with the undersigned on September 19, 1991. Petitioner's proposed findings of fact and conclusions of law were timely filed on October 9, 1991. Petitioner's' proposed findings of fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed physician in the state, holding license number ME 0028480.

   
   

2. A Final Order was filed against Respondent in Department of Professional Regulation v. Roger Lopez, M.D., Department of Professional Regulation Case No. 0070692 on August 26, 1988. The Final Order was entered in accordance with the terms of a stipulation executed by Petitioner and Respondent. Respondent's license was suspended for six months, and Respondent was placed on probation from March 5, 1989, through March 4, 1994. Respondent was properly served a copy of the Final Order.

   
   

3. Respondent was required by the terms of the Final Order to practice under the direct supervision of a physician approved by the Board of Medicine (the "Board") and to appear before the Probation Committee whenever requested to do so.

   
   

4. Respondent violated the terms of the Final Order by failing to appear before the Probation Committee and by failing to name a monitoring physician to supervise him during his probation. By letter dated August 29, 1989, Respondent was requested by the Board to appear before the Probation Committee at its regularly scheduled meeting on September 20, 1989, and to submit a curriculum vitae for a proposed supervising physician. Respondent acknowledged the Board's request in a letter to Petitioner dated August 31, 1989. Respondent failed to appear before the Probation Committee and failed to designate a monitoring physician.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

6. The burden of proof is on Petitioner to show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that the penalties requested by Petitioner should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

7. Petitioner satisfied its burden of proof. Respondent violated Section 458.331(1)(x), Florida Statutes, by violating a lawful order of the Board of Medicine (the "Board"). The Board is authorized by Section 458.331(2) to discipline the license of a physician who is found to have violated Section 458.331(1)(x).

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent

guilty of the allegations in the Administrative Complaint, issuing a reprimand, imposing an administrative fine in the amount of $5,000, suspending Respondent's license until March 4, 1994, and requiring Respondent to demonstrate to the Board no later than March 4, 1994, his ability to practice medicine with the skill and safety required under applicable statutes and rules.

DONE and ENTERED this 23rd day of October 1991, in Tallahassee, Leon County, Florida

DANIEL MANRY

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 23rd day of October, 1991.

ENDNOTE

1/ Exhibit 1 is the licensure file maintained by Petitioner concerning Respondent. Exhibit 2 is Respondent's disciplinary/probation file. Exhibit 3 consists of the minutes of the meeting of the Board of Medicine on September 20, 1989. Exhibit 4 is the deposition testimony of Ms. Constance Campbell.

APPENDIX

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Respondent did not submit proposed findings of fact.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Barbara Kemp, Business Manager I 1940 North Monroe Street Tallahassee, Florida 32399-0750

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Richard A. Grumberg, Esquire Senior Attorney

Department of Professional Regulation - Legal Section

1940 North Monroe Street Tallahassee, Florida 32399-0792

Roger Lopez, M.D. 2292 S.W. 4th Street Miami, Florida 33135

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-001625

Orders for Case No: 91-001625