STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-2864PL

)

ROBERT PAUL CATANESE, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on a factual record based upon documents filed by the parties.

APPEARANCES

For Petitioner: Tobey Schultz, Esquire

Office of General Counsel Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Robert Paul Cantanese, pro se

#75488-004

Federal Correctional Institution Miami Post Office Box 779800

Miami, Florida 33177 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Robert Paul Catanese, D.C., violated Section 456.072(1)(c), Florida Statutes (2001)-(2006), and Section 560.413(1)(c), Florida Statutes

(2001)-(2006), as alleged in the Administrative Complaint, filed by Petitioner, the Department of Health, on January 23, 2007, in DOH Case Number 2006-03224, and subsequently amended; and, if so, what disciplinary action should be taken against his license to practice chiropractic medicine in the State of Florida.

PRELIMINARY STATEMENT

On or about January 23, 2007, the Department of Health filed a two-count Administrative Complaint against Robert Paul Catanese, D.C., an individual licensed to practice chiropractic medicine in Florida, before the Board of Chiropractic Medicine, in which it alleged that Dr. Cantanese had committed a violation of Section 460.413(1)(c), Florida Statutes (2001)-(2006)(Count One); and Section 456.072(1)(c), Florida Statutes (2001)- (2006)(Count Two). Dr. Catanese, through counsel, executed an Election of Rights form in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes (2007).

On June 27, 2007, the matter was filed with the Division of Administrative Hearings with a request that an administrative law judge be assigned the case to conduct proceedings pursuant to Section 120.57(1), Florida Statutes (2007). The matter was designated DOAH Case Number 07-2864PL and was assigned to the undersigned.

On July 6, 2007, in response to the Initial Order entered in this case, Petitioner suggested that no formal evidentiary hearing was necessary to resolve the matter. Petitioner argued that the case could be decided based solely upon documents filed by the parties. On July 10, 2007, in furtherance of Petitioner’s suggestion, Petitioner filed Petitioner’s Motion for Official Recognition. That Motion was granted by Order entered July 18, 2007.

On July 13, 2007, counsel for Dr. Catanese filed a Motion for Abatement, informing the undersigned that Dr. Catanese was presently incarcerated in a Federal prison, serving a 40-month sentence, and requesting that the case be held in abeyance until

30 days after Dr. Catanese’s release. A Motion to Withdraw as Counsel for Respondent was also filed on the same date as the Motion for Abatement. That Motion was granted.

On August 9, 2007, after responsive pleadings had been filed by both parties, an Order on Motion for Abatement was entered. In the Order, the parties were informed of the following:

Having reviewed the Administrative Complaint, it appears that the issue raised can indeed be tried with documents alone, depending on how Petitioner intends to proceed. There are essentially two issues raised in the Administrative Complaint: (1) has Respondent been convicted of a crime (given his incarceration in Federal prison, it is doubtful that there is any dispute

about this issue); and (2) does the crime relate to the practice of chiropractic medicine OR to the ability to practice chiropractic medicine. As to the second issue, if Petitioner modifies its allegations to whether the crime relates to the practice of chiropractic medicine, that issue is likely to turn, not on testimony, but on the elements of the crime and the allegations of the indictment. If Petitioner does not amend its Administrative Complaint to eliminate the issue of whether the crime directly relates “to the ability to practice chiropractic medicine” then it appears that expert testimony will be necessary.

Based upon the foregoing, the following order was issued:

1. On or before August 24, 2007, Petitioner shall explain which specific issues it intends to pursue in this matter and specifically whether it believes that any testimony, live or by deposition or affidavit, is necessary; and

   
   

2. On or before August 24, 2007, Respondent shall explain fully what evidentiary issues he believes must be addressed by witnesses in this case.

   
   

   In response to the August 9, 2007, Order, Petitioner filed a Response to Order on Motion to Abate/Motion for Leave to Amend. Petitioner requested leave to amend the Administrative Complaint to eliminate allegations that Dr. Catanese’s criminal activity was related to his ability to practice chiropractic medicine. No response to the Order on Motion for Abatement was filed by Dr. Catanese.

   On September 6, 2007, an Order Establishing Schedule for Resolution of Case and Denying Motion for Abatement was entered. After summarizing the events which preceded entry of the Order, the Motion for Abatement was denied, Petitioner’s Motion to Amend was granted, and the following procedures were established for disposition of this matter:

3. On or before September 28, 2007, Petitioner shall file any documents which it wishes to be considered in rendering a recommended order in this case;

   
   

4. On or before October 31, 2007, Respondent shall file any documents which he wishes to be considered in rendering a recommended order in this case;

   
   

5. On or before November 16, 2007, Petitioner shall file rebuttal documents;

   
   

6. On or before November 30, 3007, the parties may file proposed recommended orders; and

   
   

7. A recommended order will be entered in December 2007, based upon the documentary evidence filed by the parties.

Consistent with the Order Establishing Schedule, on September 6, 2007, Petitioner filed the following documents: an Affidavit by Robert Butler, D.C.; a certified copy the Judgment in a Criminal Case in United States of America v. Robert

Catanese, Case Number 9:06CR80020-004, United States District Court, Southern District of Florida, West Palm Beach Division; and a certified copy of the Transcript of Plea Hearing Before

the Honorable Daniel T.K. Hurley in United States of America v.

Joseph Sutera, Agustin Castellanos and Robert Catanese, Docket No. 06-80020-Cr-Hurley, United States District Court, Southern District of Florida, West Palm Beach Division.

Also consistent with the Order Establishing Schedule, Petitioner filed a proposed order for consideration in entering this Recommended Order. Petitioner’s Proposed Recommended Order has been fully considered.

Dr. Catanese has not filed any documentary evidence or proposed recommended order. On September 27, 2007, he did, however, file a letter in which he again requests that the matter be held in abeyance. In his letter, Dr. Catanese states,

in part:

I feel that my drug addiction was the true root evil of this issue. My rehabilitation to sobriety has both humbled and enlightened me as to the devastating effects of this disease on myself, my children, my wife, and family.

My rehabilitation is ongoing, as I am scheduled to start the 540 hour, Residential Drug & Alcohol Abuse Program here at this institution. My completion and release from the program and institution are scheduled to be complete around September, 2008.

While Dr. Catanese’s comments relate to possible mitigating circumstances which the Board of Chiropractic Medicine can take into account in deciding appropriate punishment, his comments are not relevant to the issues to be decided in this forum.

Ultimately, as explained in an earlier Order, the only factual issues to be resolved in this case are, based upon the Administrative Complaint, as amended: (1) has Respondent been convicted of a crime; and (2) did the crime relate to the practice of chiropractic medicine. If the answer to these questions is “yes,” which it is, why Dr. Catanese committed the crime is only relevant, if at all, in deciding the appropriate punishment.

The language of the statutory offenses Dr. Catanese has been charged with has not changed during the times relevant to this matter. Therefore, all future references to those statutory charges will be to the 2006 version of Florida

Statutes.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving chiropractic physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 460, Fla. Stat. (2006).

   2. Respondent, Robert Paul Catanese, D.C., is, and was at all times material to this matter, a chiropractic physician

      licensed to practice medicine in Florida pursuant to Chapter 460, Florida Statutes.

2. The Indictment and Conviction.

   
   

   1. On or about February 2, 2006, Dr. Catanese was indicted in United States of America v. Joseph Sutera, Eric Ressner,

      Agustin Castellanos, Robert Catanese, and Stephanie Mirante, United States District Court, Southern District of Florida, Case No. 06-80020 CR, (hereinafter referred to as the "Indictment"). Dr. Catanese was charged with conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 371.

   2. Generally, the indictment alleges that Dr. Catanese, between June 2001 and September 2005, transferred private health insurance information concerning his patients to a co- conspirator, Joseph Sutera, knowing that the information would be used to submit false and fraudulent claims for reimbursements for Ketamine and other prescription medications.

   3. As it relates to Dr. Catanese, the indictment was predicated upon the following allegations of “Background” fact:

      Defendant ROBERT CATANESE was a licensed doctor of chiropractic and the owner Catanese Chiropractic Center, a clinic through which he offered chiropractic services and through which he employed licensed physicians, including defendant AUGUSTIN CASTELLANOS, to write

      prescriptions and provide other medical services for his patients.

   4. Count One of the Indictment charges Dr. Catanese with conspiracy in violation of 18 U.S.C., § 347, alleging the following facts:

      . . . .

      
      

      22. Defendant ROBERT CATANESE transferred the private health insurance information of his patients to defendant JOSEPH SUTERA knowing the information would be used to submit false and fraudulent prescription drug claims for Ketamine HCL and other prescription medications through The Medicine Shoppe to The Private Health Insurance Companies.

      
      

      . . . .

      
      

      30. Defendant ROBERT CATANESE received approximately $31,000 in the form of checks and additional amounts in cash from defendant JOSEPH SUTERA and The Medicine Shoppe which represented proceeds from the payments received from false and fraudulent prescription drug claims.

      
      

      . . . .

      
      

   5. On or about December 23, 2005, Dr. Catanese signed a Plea Agreement in which he agreed to plead guilty to one count of conspiracy, “in violation of Title 18, United States Code, Section 371, an object of which was to commit health care fraud, in violation of Title 18, United States Code, Section 1347.”

   6. On or about July 24, 2006, consistent with his Plea Agreement, Dr. Catanese pled guilty to one count of conspiracy to commit health care fraud.

   7. During the plea hearing, the prosecutor described the factual basis for the plea as it relates to Dr. Catanese as follows:

      Yes, Your Honor, had this gone to trial the Government would prove beyond a reasonable doubt that in or between June 2001 and September 2005, Palm Beach Gardens, Florida, Palm Beach County within the Southern District of Florida and elsewhere the defendants Joseph Sutera, Robert Catanese, Agustin Castellanos and others, Eric Ressner and Stephanie Mirante knowingly conspired to commit health care fraud through false and fraudulent prescription drug claims for the purpose of enriching or otherwise benefiting themselves.

      
      

      The Government would prove that Joseph Sutera was a licensed pharmacist. As a licensed pharmacist, although he was licensed to dispense medication, he was not authorized to prescribe prescription medication including compounds, creams or other substances and was not authorized to dispense any prescription medications without a valid prescription from a licensed physician, prescription medications because of their toxicity and potential harmful effects deemed not for use to administer such drugs.

      
      

      Augustine Castellanos was a medical doctor specializing in neurology and sleep disorders. Dr. Catanese was a doctor of chiropractic, and owner of Catanese Chiropractic Center. He employed Agustin Castellanos. His job was to write prescriptions and provide medical services for his chiropractic patients.

      
      

      Mr. Sutera owned and operated a retail pharmacy called The Medicine Shoppe.

      It was a franchise which was located [at] 3365 Burns road in Palm Beach Gardens, Florida. Through this pharmacy, Mr. Sutera submitted thousands of insurance claims to approximately 200 private health insurance companies, and these claims were false in that they were for prescription medications that were not prescribed, not requested, and, in many cases, not delivered.

      
      

      Although these claims were for virtually every type medication that there is, the majority were for medications for which there was a high reimbursable from the insurance costs. These included things such as pain patches, a certain cancer drug called Levac, and claims for a drug called Ketamine. Ketamine is a Schedule III controlled substance controlled by the Drug Enforcement Administration. It is a prescription medication most often used as an anesthetic for children and as a battle field anesthetic in adults. It produces dissociative effect, for battle field purposes, when a limb is being taken off that is a good thing. Dissociative effect makes it popular for illicit purposes. It has become popular for a club drug, where it is used for purposes of getting high, so to speak.

      
      

      In addition to these uses, the drug recently has also been found to have some pain applications and Mr. Sutera as a pharmacist helped develop a cream that had as its main ingredient Ketamine. He distributed this cream under a number of different names, including formula 2 and Ketazone.

      
      

      What was attractive about this cream for insurance fraud purposes, was that the reimbursement for the jars of the cream or the tubes of the cream was rather high and could be as much as $1,000 per claim.

      In order to submit these claims, however, Mr. Sutera needed at least two things. He needed patient information. He needed names, addresses, and health insurance information for particular individuals, and he also needed the names of doctors who could be listed as the prescribing physicians.

      
      

      It was important that, particularly, the doctors have some knowledge of what was happening because the private health insurance companies would regularly audit the distribution of drugs from the pharmacy and would send out letters to the prescribing physicians asking if, in fact, they had prescribed certain medications.

      
      

      . . . .

      
      

      For purposes of getting the patient health information, Mr. Sutera did that in a number of different ways. . . .

      
      

      . . . .

      
      

      In addition to that, on at least three different occasions, Dr. Catanese who ran a chiropractic clinic as Your Honor is aware sold his patient list to Mr. Sutera.

      
      

      When I say he sold his patient list to

      Mr. Sutera, he sold all of the patient lists and, in exchange, Mr. Sutera agreed to give Dr. Catanese $100 per jar of the cream that was being prescribed by doctors through, Catanese’s clinic. Dr. Catanese was aware at the time that, in fact, these names were going to be used to submit false claims, as well as, for the submission of any claims for patients that really did get the cream.

      
      

      The quid pro quo, if you will, was at the time, Dr. Catanese had a drug problem as Your Honor is aware, and Mr. Sutera provided him with large amounts of Percocet.

      In addition to that, Mr. Sutera also provided Dr. Catanese with cash and with at least $31,000 in money in the form of checks, as well.

      
      

      . . . .

      
      

   8. The presiding judge specifically asked Dr. Catanese about his involvement in the acts described by the prosecutor:

      BY THE COURT:

      
      

      Q. Dr. Catanese, would you come to the lectern. Let me pose these questions to you. You had an opportunity to listen to what Ms. Bell had to say as pertains to your involvement. Do you agree you did and said the various things Ms. Bell suggested

      
      

      A. Yes, Your Honor.

      
      

      Q. Now, again, and I know you listened, and I am sure this is a matter of enormous concern to you, but this crime because the punishment is potentially longer than one year in jail, it is classified as a felony offense.

      
      

      If the court concludes that you really know what you are doing, that you are making a voluntary and informed decision, what I would do is accept your plea, you see, and adjudicate you to be guilty.

      
      

      The moment that happens, you are then classified as a convicted felon, and, of course, you will automatically lose those valuable civil rights, the right to vote, the right to possess a firearm or serve on a jury or run for public office.

      
      

      Do you understand you will lose those civil rights?

      
      

      A. Yes, sir.

      Q. Now, again, I would imagine this also would have an impact on your medical license. Do you understand that as well?

      
      

      A. Yes, sir.

      
      

      Q. Knowing and understanding these things, I want to indicate I certainly have had an opportunity to observe you and talk with you. You are a highly intelligent person.

      I am satisfied you are competent to make the decision that you are thinking about making.

      
      

      We’ve gone through the rights of trial by jury and all those other rights. We’ve gone through all of the provisions of the plea agreement.

      
      

      Is there anything out there I haven’t touched on, any questions or concerns you have that you wanted to raise?

      
      

      A. Not at this time, Your Honor.

      
      

      1. Is it your desire, then, to continue forward and enter the pleas we have been discussing?

         
         

         A. Yes, sir.

         
         

         THE COURT: Mr. Lubin, would you do that for the doctor?

         
         

         MR. LUBIN: Yes, Your Honor.

         
         

         On behalf of Robert Catanese, we would withdraw previously entered plea of not guilty and enter a plea of guilty to Count 1 which is the conspiracy count.

         
         

         THE COURT: Doctor, is that what you want to do?

         
         

         THE DEFENDANT: Yes, sir.

         
         

         THE COURT: 06-80020, United States versus Robert Catanese, it is the finding of the

         court that Dr. Catanese is fully competent and capable of entering an informed plea.

         
         

         I find his plea is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of this particular offense, therefore, I accept the doctor’s plea and I now adjudicate him to be guilty of the crime of having knowingly and willfully conspired to commit health care fraud in violation of Title 18, United States Code, Section 371.

         
         

   9. On November 7, 2006, United States District Judge Daniel T.K. Hurley adjudicated Dr. Catanese guilty of one count of conspiracy to commit health care fraud in violation of

      18 U.S.C. § 371, a felony. Judge Hurley sentenced Dr. Catanese to serve 40 months imprisonment, followed by three years of supervised release, and required that he forfeit $31,000.00.

3. The Relationship of Dr. Catanese's Convictions to the

Practice of Medicine.

1. In light of Dr. Catanese’s guilty plea to Count One of the indictment and his agreement with the prosecutor’s summary of the factual basis for his plea, it is concluded that

   Dr. Catanese engaged in the activities alleged in the indictment and summarized by the prosecutor for purposes of this proceeding. All of those activities related to the practice of chiropractic medicine.

2. But for Dr. Catanese’s license to practice chiropractic medicine in Florida, Dr. Catanese would not have

   been able to commit the crime for which he was found guilty. It was his license to practice chiropractic medicine that facilitated his ability to open the Catanese Chiropractic Clinic and to obtain the private health insurance information of his patients which was provided to his co-conspirator for use in committing health care fraud.

3. The crime for which Dr. Catanese was convicted is a crime that “directly relates to the practice of chiropractic

   medicine.”

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

4. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569, 120.57(1), and 456.073(5), Florida Statutes (2007).

   1. The Charges of the Administrative Complaint, as

      
      

      Amended.

      
      

5. Section 460.413(2), Florida Statutes, authorizes the Board of Chiropractic Medicine (hereinafter referred to as the "Board"), to impose penalties ranging from the issuance of a letter of concern to revocation of a physician's license to practice medicine in Florida if a physician commits one or more acts specified therein.

6. Section 456.072(1)(c), Florida Statutes, also provides authority for the Board and other regulatory boards to impose similar penalties for one or more specified acts.

7. In its Administrative Complaint, as amended, the Department has alleged that Dr. Catanese has committed the acts described in Sections 456.072(1)(c) and 460.413(1)(c), Florida Statutes. The acts defined in those provisions are the same. Therefore, only the offense described in Section 460.413(1)(c), Florida Statutes, which applies specifically to chiropractic licensees, will be further addressed in this Recommended Order.

   1. The Burden and Standard of Proof.

      
      

8. The Department seeks to impose penalties against

   
   

   Dr. Catanese through the Administrative Complaint, as amended, that include suspension or revocation of his license and/or the imposition of an administrative fine. Therefore, the Department has the burden of proving the specific allegations of fact that support its charge that Dr. Catanese violated Section 460.413(1)(c), Florida Statutes, by clear and convincing evidence. Department of Banking and Finance, Division of

   Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes (2007)("Findings of fact shall be based on a

   preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

9. What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of

   Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:

   . . . [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   
   

   See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re

   
   

   Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

   1. Section 460.413(1)(c), Florida Statutes.

      
      

10. Section 460.413(1)(c), Florida Statutes, defines the following disciplinable offense:

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

    the ability to practice chiropractic medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

    
    

11. In paragraph 9 of the Administrative Complaint, as amended, it is alleged that Dr. Catanese’s felony conviction relates to his practice of chiropractic medicine.

12. The evidence has clearly and convincingly proven that Dr. Catanese has been convicted of a crime that relates to his practice of chiropractic medicine as alleged in the Administrative Complaint, as amended, and described in the Findings of Fact. Dr. Catanese’s conviction for conspiracy to commit health care fraud involved Dr. Catanese’s use of his chiropractic license to obtain, and then sell to a co- conspirator, private health insurance information of his patients knowing that the information would be used to submit fraudulent prescription reimbursement claims. His status as a chiropractic physician allowed him to open the Catanese Chiropractic Clinic, through which he then obtained the patient insurance information necessary to submit the fraudulent claims. These were the facts that were the basis for Dr. Catanese’s guilty plea and conviction, and they clearly related to his practice of chiropractic medicine.

13. The evidence proved clearly and convincingly that Dr. Catanese has violated Section 460.413(1)(c), Florida Statutes.

    1. The Appropriate Penalty.

    
    

14. In determining the appropriate punitive action to recommend to the Board in this case, it is necessary to consult the Board's "disciplinary guidelines," which impose restrictions and limitations on the exercise of the Board's disciplinary authority under Section 460.413, Florida Statutes. See Parrot Heads, Inc. v. Department of Business and Professional

    Regulation, 741 So. 2d 1231 (Fla. 5th DCA 1999).

    
    

15. The Board's guidelines for a violation of Section 460.413, Florida Statutes, are set out in Florida Administrative Code Rule 64B2-16.003. As it relates to Dr. Catanese’s violation of Section 460.413(1)(c), Florida Statutes, Florida Administrative Code Rule 64B2-16.003(1)(k), provides the following:

    . . . . misdemeanor: from a minimum fine of $1,500 and six months probation, up to a fine of $5,000 and a year’s suspension with conditions; felony: from a minimum of a fine of $7,500 and two years probation, up to a fine of $10,000 and revocation.

    
    

16. Florida Administrative Code Rule 64B2-16.003(2), provides that, in applying the penalty guidelines, the following

    aggravating and mitigating circumstances are to be taken into account:

    
    

    1. The danger to the public;

    2. The number of unrelated and distinct offenses;

    3. The actual damage, physical or otherwise, to the patient(s);

    4. The length of time since the date of the last violation(s);

    5. The length of time the licensee has practiced his or her profession;

    6. Prior discipline imposed upon the licensee;

    7. The deterrent effect of the penalty imposed;

    8. The effect of the penalty upon the licensee’s livelihood;

    9. Rehabilitation efforts of the licensee including remorse, restitution, and corrective actions;

    10. Efforts of the licensee to correct or stop violations or failure of the licensee to correct or stop violations;

    11. Related violations against the licensee in another state, including findings of guilt or innocence, penalties imposed and penalties served;

    12. The actual negligence of the licensee pertaining to any violation;

    13. Any other mitigating or aggravating circumstances.

        
        

17. In Petitioner's Proposed Recommended Order, the Department has suggested that Dr. Catanese’s license to practice chiropractic medicine be revoked. In support of this recommended penalty, it has been suggested that Dr. Catanese failed to present any mitigating factors but that there existed aggravating factors which the Board should consider.

18. The difficulty with the Department’s suggested penalty is that, while it is within the Board’s guidelines, Dr. Catanese has not had a full opportunity to present mitigating factors, other than to suggest that drug addiction contributed to his criminal activities, a suggestion supported by comments made during his plea hearing. Therefore, before deciding the ultimate penalty to be imposed upon Dr. Catanese, the Board should give him an opportunity to be heard on the sole issue of mitigating and aggravating factors.

RECOMMENDATION

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

RECOMMENDED that the a final order be entered by the Board of Chiropractic Medicine finding that Robert Paul Catanese, D.C., has violated Sections 456.072(1)(c), and 460.413(1)(c), Florida Statutes, as described in this Recommended Order; and imposing discipline consistent with the Board’s guidelines after giving Dr. Catanese an opportunity to address any additional mitigating factors which he wishes to present to the Board.

DONE AND ENTERED this 19th day of December, 2007, in

Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2007.

COPIES FURNISHED:

Tobey Schultz, Esquire Office of General Counsel Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Robert Paul Cantanese #75488-004

Federal Correctional Institution Miami Post Office Box 779800

Miami, Florida 33177

Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3265

Dr. Ana M. Viamonte Ros, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

1. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

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 these cases.

Docket for Case No: 07-002864PL

Orders for Case No: 07-002864PL