STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3026

)

AMADOR A. CABRERA, 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 August 18, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Carlos J. Ramos, Esquire

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Thomas F. Almon, Esquire

Suite 1717 New World Tower

100 North Biscayne Boulevard Miami, Florida 33132

and

Robert L. Feldman, Esquire 3081 Salzedo Street

Coral Gables, Florida 33134 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses alleged in the amended administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By amended administrative complaint dated May 18, 1992, petitioner charged that respondent, a licensed physician in the State of Florida, violated Section 458.331(1)(c), Florida Statutes, by being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine.

Respondent executed an election of rights disputing the allegations of fact contained in the administrative complaint, and requested a formal hearing. The matter was then referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called respondent as a witness, and its exhibits 1-6 were received into evidence. 1/ Respondent testified on his own behalf and called Edward Goldberg, Joseph Samalion, Mario Soler, Larry Melby, Mayra Batista, Erwin Lichter, Lori Samalion, Rene Trujillo, and Kathy Cabrera, as witnesses. Respondent's exhibits 1-3 were received into evidence.

The transcript of hearing was filed September 8, 1992, and the parties were granted leave until September 18, 1992, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Professional Regulation (Department), is a state governmental licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent, Amador A. Cabrera, is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0026024. Respondent was licensed to practice medicine in the State of Florida in August 1975, and thereafter operated a private practice until on or about April 15, 1985. During such period, respondent was a member of the medical staff at the following hospitals: Coral Gables Hospital, Cedars of Lebanon Hospital, Larkin General Hospital, Hialeah Hospital, and International Hospital.

   
   

3. On May 16, 1984, respondent was indicted in the United States District Court, Eastern District of Kentucky, for conspiracy to distribute and possess with intent to distribute, and to aid and abet others in the distribution of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. Sections 841(a)(1) and 846, and interstate and foreign travel in aid of a racketeering enterprise in violation of 18 U.S.C. Sections 1952(a)(1)(3) and 2. The overt acts which formed the basis of the indictment were alleged to have occurred in August 1983.

   
   

4. In April 1985, respondent was found guilty of the aforesaid charges, and on July 8, 1985, was sentenced to 10 years imprisonment and fined $45,000. Respondent served a term of his sentence in the federal prison system, and on September 18, 1990, was paroled, with a termination date of April 14, 1995.

   
   

5. While imprisoned, as well as while on parole, respondent did not pose any supervision problems. Moreover, while imprisoned and thereafter, respondent remained current in all continuing education requirements and, following his release from prison, reactivated his medical license in the State of Florida. Respondent has not, however, prescribed, administered or dispensed controlled substances, and is apparently not authorized to hold a DEA number that would authorize him to perform such functions until termination of his probation.

6. Following his release from prison, respondent, who was divorced during his incarceration, sought and obtained custody of his four daughters: Millie, age 20; Kathy, age 19; Belinda, age 17; and Michelle, age 13. Respondent's daughters continue to reside with him, are solely supported by him, and, although aware of his transgression, are supportive of him.

   
   

7. In April 1991, respondent opened his own business, the Nutrition and Fitness Center. That business counsels clients regarding proper nutrition and exercise. Respondent sold such business to Joseph M. Samalion, likewise a licensed physician in the State of Florida, in 1992, but continues to work at the center. At hearing, Dr. Samalion offered to supervise respondent in his practice of medicine, should respondent be accorded the opportunity to retain his license.

   
   

8. Apart from respondent's conviction, discussed supra, there is no suggestion of record that respondent lacks the requisite skills or is otherwise not capable of safely engaging in the practice of medicine. To the contrary, the proof offered on respondent's behalf demonstrates that, among those who know of him, respondent was considered and, notwithstanding his conviction, is still considered an excellent and respected physician. 2/

   
   

9. Regarding the crimes for which respondent stands convicted, he averred at hearing that his sole involvement in the conspiracy was the laundering of profits derived from the operation, and that he was not personally involved in the sale of cocaine. Here, the proof supports respondent's characterization of his involvement in the conspiracy, but such does not diminish the seriousness of his offense.

   
   

10. Cocaine, a narcotic, addictive drug, is potentially lethal and a danger to the public welfare. It is commonly known that the illegal sale and use of such drug has brought misery to the lives of countless people and has inflicted a severe burden on our society. Respondent, who for no apparent reason other than personal gain, laundered the profits derived from the illegal sale of cocaine, and thereby provided support integral to the success of the illegal enterprise. Under such circumstances, his involvement may be considered as offensive as the actual sale of cocaine.

    
    

11. Notwithstanding, over nine years have elapsed since the acts which formed the basis for the conviction were committed, and over seven years have elapsed since respondent's conviction. Respondent has served his term of confinement without incident, and has conducted himself in like manner while on probation. He is apparently, again, a productive member of society, enjoys the respect of his peers and clients, and the support of his family. Given the proof regarding respondent's conduct during the years that have intervened since the offenses were committed, there is good reason to believe that, currently, respondent may be relied upon to abide by existent law.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

    
    

13. At issue in this proceeding is whether respondent's conduct violated the provisions of Section 458.331(c), Florida Statutes (1982 Supp.). In cases of this nature, the Department bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

14. Pertinent to this case, Section 458.331(1), Florida Statutes (1982 Supp.), provides that the Board of Medicine may take disciplinary action against a licensee when it finds the person guilty of the following offense:

    
    

    (c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. . . .

    
    

15. In Rush v. Department of Professional Regulation, 448 So.2d 26 (Fla. 1st DCA 1984), the licensee was found by the Board of Podiatry to have violated Section 461.013(1)(c), Florida Statutes (1981), which statutory provision authorized disciplinary action against podiatrists for grounds identical to those set forth in Section 458.331(1)(c), Florida Statutes (1982 Supp.). The Rush court affirmed the order of the Board of Podiatry that a conviction in federal court of conspiracy to possess and import marijuana was a conviction of a crime "which directly related to the practice of podiatry or the ability to practice podiatry." In so doing, the Rush court stated, at page 27:

    
    

    A podiatrist is one of six categories of licensed professionals allowed to prescribe, administer, and dispense controlled substances by the State of Florida. Section 893.02(14), Florida Statutes (1981). The Legislature has invested a trust and confidence in these six categories of licensees by permitting them to dispense drugs which have a high potential for abuse. The actions of Dr. Rush, which culminated in his conviction, constitute a breach of that trust and confidence which the people, through the Legislature, have placed in him. Dr. Rush's conduct shows a lack of honesty, integrity, and judgment, and an unwillingness to abide by the Laws of the State of Florida which cannot be tolerated of a professional licensed to dispense dangerous drugs.

    The importation of marijuana, a drug that the Florida Supreme Court has described as "a harmful mind-altering drug which endangers the health of the user and which is highly detrimental to the public welfare," Raines v. State, 225 So.2d 330 (Fla. 1969), presents a danger to the public health and does not correspond to that level of professional conduct expected of one licensed to practice podiatry in this state. By confirming the convictions upon which disciplinary action may be based to those directly related to the practice of podiatry, the Legislature has not limited the grounds for disciplinary action to only those crimes which related to the technical ability to practice podiatry or to those

    which arise out of misconduct in the office setting. A conviction for a crime, such as importing marijuana, which presents a danger to the public welfare will be adequate basis for disciplinary action to be taken against a practitioner.

    
    

16. The above-quoted comments from the Rush decision are equally applicable to a medical doctor who is convicted of similar crimes. Greenwald v. Department of Professional Regulation, 501 So.2d 740 (Fla. 3d DCA 1987), review denied 511 So.2d 998 (Fla. 1987), cert. denied 108 S. Ct. 502, 484 US 986, 98 L.Ed.2d 501 (1987). Accordingly, it is concluded that the respondent is guilty of violating Section 458.331(1)(c), Florida Statutes (1982 Supp.).

    
    

17. In the normal course of events, consideration of the offenses for which respondent stands convicted, as well as the aggravating and mitigating circumstances set forth in Rule 21M-20.001, Florida Administrative Code, would compel the conclusion that an appropriate penalty in the instant case would be revocation of licensure. However, in the years that have elapsed since the offenses were committed circumstances have changed, and it can no longer be concluded that, as a consequence of such offenses, respondent currently presents a danger to society, is not capable of safely engaging in the practice of medicine, or cannot be relied upon to abide by existent laws. Under such circumstances, revocation is not an appropriate penalty.

    
    

18. In fashioning an appropriate penalty under the facts of this case, due consideration must be given to the seriousness of the crimes with which respondent stands convicted, while also giving deference to the passage of time since such offenses were committed and the concomitant change of circumstances. Considering such factors, an appropriate penalty is the suspension of respondent's license until such time as he has successfully completed his term of parole, which is currently scheduled to terminate on April 14, 1995, and that his license then be reinstated provided, as required by Section 458.331(4), Florida Statutes (1991), the Board of Medicine is satisfied that respondent is then capable of safely engaging in the practice of medicine.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding the respondent guilty of

violating the provisions of Section 458.331(1)(c), Florida Statutes (1982 Supp.), and imposing the penalties set forth in paragraph 18, supra.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of October 1992.

WILLIAM J. KENDRICK

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 1992.

ENDNOTES

1/ At hearing, the admissibility of petitioner's exhibit 5 was taken under consideration. Upon consideration, such exhibit is received into evidence under the provisions of Section 120.58(1)(a), Florida Statutes.

2/ The subject crimes are the only offenses for which respondent has been convicted, and constitute the sole basis to question his competency.

APPENDIX

Petitioner's proposed findings of fact are addressed follows:

1. Addressed in paragraph 10.

2. Addressed in paragraph 16.

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

1. Addressed in paragraph 2.

2. Rejected as unnecessary detail.

3. Addressed in paragraph 3.

4. Addressed in paragraph 4.

5. Addressed in paragraph 5.

6. Addressed in paragraph 4.

7. Addressed in paragraph 5.

8. Rejected as not a finding of fact.

9. Addressed in paragraph 5, otherwise rejected as not supported by the proof.

10. Addressed in endnote 2.

11. Addressed in paragraph 5, otherwise rejected as not supported by the proof.

12 & 13. Addressed in paragraphs 5-7 and 11.

1. Rejected as contrary to the proof. See paragraphs 9 & 10.

2. Addressed in endnote 2.

COPIES FURNISHED:

Carlos J. Ramos, Esquire Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Thomas F. Almon, Esquire Suite 1717 New World Tower

100 North Biscayne Boulevard Miami, Florida 33132

Robert L. Feldman, Esquire 3081 Salzedo Street

Coral Gables, Florida 33134

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

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: 92-003026

Orders for Case No: 92-003026