STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF MEDICINE,

Petitioner,

vs.

DREW E. FENTON, M.D.,

Respondent.

/

Case No. 12-3594PL

RECOMMENDED ORDER

On June 18, 2013, a hearing was held in Tallahassee, Florida before Administrative Law Judge Lisa Shearer Nelson, an administrative law judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Acima M. Blagg, Esquire

Thomas J. Morton, Esquire Department of Health

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

For Respondent: Drew E. Fenton, M.D., pro se

6650 Franklin Avenue, Apartment 1007 Los Angeles, California 90028

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated section 458.331(1)(b) and (kk), Florida Statutes (2010), and if so, what penalty should be imposed for the violations proven.

PRELIMINARY STATEMENT

On November 21, 2011, Petitioner, Department of Health (Petitioner or the Department), filed an Administrative Complaint against Respondent, charging him with violating section 458.331(1)(b) and (kk), Florida Statutes (2010 and 2011).1/ The factual bases for the charges are that California’s licensing authority imposed discipline against his California medical license, and that he failed to report that discipline to Florida within 30 days.

On January 18, 2012, Respondent submitted an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing pursuant to section 120.57(1), Florida Statutes. On November 2, 2012, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.

The case was originally scheduled for hearing January 16, 2013. It was continued twice and ultimately commenced on

June 18, 2013. On March 7, 2013, the Department filed a Motion to Amend Administrative Complaint or in the Alternative for Leave to Conform Pleadings to the Evidence. At a telephonic hearing on the motion, the parties indicated that in light of what appeared to be fruitful settlement discussions, a continuance might obviate the need for hearing. Accordingly, no ruling was made on the motion to amend at that time. Once the matter was re-

scheduled for hearing, an Order was issued on June 11, allowing the amendment of the Administrative Complaint. The Department filed the Amended Administrative Complaint with the Division on June 14, 2013.

At hearing, the Department presented the testimony of Allison Dudley and Shondra Watson, and Petitioner’s Exhibits 1-4, 7, and 9 were admitted into evidence. Respondent testified on his behalf and Respondent’s Exhibits 3, 5, 6, 8, and 9 were admitted.

The Transcript of the hearing was filed with the Division on July 9, 2013. The parties were given 10 days to file their respective proposed recommended orders, making them due July 19, 2013. Both parties have filed Proposed Recommended Orders, which have been carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to section

   20.43 and chapters 456 and 458, Florida Statutes.

   
   

2. At all times material to the Amended Administrative Complaint, Respondent has been licensed as a medical doctor in the State of Florida, having been issued license number ME94098.

   
   

3. During all times relevant to the Amended Administrative Complaint, Respondent also held a license to practice medicine in the State of California.

4. On September 7, 2010, Linda Whitney, the Executive Director of the California Board of Medicine, filed an Ex Parte Petition for Interim Suspension Order (Ex Parte Petition) in Case No. 06-2007-187158, seeking to suspend, pending a full hearing on the merits, Respondent’s physician’s and surgeon’s certificate in the State of California.

5. On September 9, 2010, Administrative Law Judge Samuel Reyes of the California Office of Administrative Hearings entered an Ex Parte Interim Suspension Order, stating that the Ex Parte Petition had come up for hearing, with both the Executive Director (through counsel) and Dr. Fenton appearing and submitting documents and presenting argument. Judge Reyes granted the Ex Parte Petition; suspended Respondent’s California Physician’s and Surgeon’s certificate; scheduled a hearing on September 30, 2010; and set a deadline for submitting additional affidavits and other documents.

6. After the hearing on September 30, 2010, Judge Reyes entered an Interim Suspension Order, containing findings of fact and conclusions of law. The Interim Suspension Order indicates that it was entered pursuant to California Government Code section 11529, which, as stated in the Interim Suspension Order,

   
   

   authorizes licensure suspension and the imposition of other conditions pending a resolution of underlying disciplinary allegations. Subdivision (a) of the statute provides that: “[i]nterim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act . . . and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare.” Subdivision

   1. provides: “[t]he administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that

      1. There is a reasonable probability that the petitioner will prevail in the underlying action. (2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.”

         
         

7. The Interim Suspension Order granted the Petition and suspended Respondent’s license in accordance with Government Code section 11529.

8. On May 8, 2012, the Medical Board of California adopted a Stipulated Settlement and Disciplinary Order as the Decision and Order of the Medical Board of California (Board Order), effective June 7, 2012.

9. The Stipulated Settlement and Disciplinary Order, which was signed by Dr. Fenton, states in pertinent part:

1. Respondent does not contest that, at an administrative hearing, complainant could establish a prima facie case with respect to the charges and allegations contained in SAA

   
   

   No. 06-2007-187158, and that he has thereby subjected his license to the disciplinary action. Respondent admits the truth of paragraph 31C. in SAA No. 06-2007-187158.

   
   

2. SSA No. 06-2007-187158 refers to the Second Amended Accusation, which is the charging document in the underlying California case, akin to an administrative complaint in Florida. The SAA alleges that Respondent is subject to discipline based upon impairment because of physical or mental illness affecting competency in violation of the California Business Code, section 822; conviction of a crime substantially related to the qualifications, functions, and duties of the medical profession in violation of section 2236; and general unprofessional conduct, in violation of section 2234.

3. The Board Order revoked Respondent’s Physician’s and Surgeon’s Certificate. The revocation was stayed, however, and Respondent was placed on probation for a period of seven years, subject to terms and conditions outlined in the Board Order.

   Those terms and conditions included abstinence from the use of any controlled substances and any drugs requiring a prescription other than those lawfully prescribed by another practitioner; abstinence from alcohol use; biological fluid testing; completion of a professionalism program; submission to a psychiatric evaluation; psychotherapy by a California-licensed, board-certified psychiatrist or licensed psychologist; monitoring of Respondent’s

   
   

   practice while on probation; and a prohibition against supervising physician assistants during the course of probation.

4. Respondent did not report the Interim Suspension Order dated September 9, 2010, to the Florida Board of Medicine within

   30 days of the Interim Suspension Order. Respondent also did not update his practitioner profile to include the discipline in the State of California.

5. The Board received notice from the State Federation of Medical Boards that another state had taken action, i.e., that the Interim Suspension Order had been issued by the State of California.

6. There is no allegation, nor was any evidence presented, that Respondent has violated the terms of the Board Order entered in California.

7. No evidence was presented indicating that Respondent has ever been disciplined previously, in Florida or in California. At the time of the hearing, Respondent was not practicing medicine. He testified at hearing that he has enrolled voluntarily in the Florida Physicians’ Resource Network (PRN). However, no contract with PRN was entered into evidence.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this

   
   

   action pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

9. This is a proceeding whereby the Department seeks to impose discipline against Respondent’s license to practice medicine. The Department has the burden to prove the allegations in the Amended Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 595 So. 2d 292 (Fla. 1987). As stated by the Supreme Court of Florida,

   Clear 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 testimony must be precise and lacking in confusion as to the facts at issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

   
   

   v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met where the evidence is in conflict; however, “it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

10. The Amended Administrative Complaint alleges violations of subsections 458.331(1)(b) and (kk), Florida Statutes. Section 458.331(1) states in pertinent part:

    
    

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in section 456.072(2):

       
       

       * * *

       
       

       (b) Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. The licensing authority’s acceptance of a physician’s relinquishment of a license, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the physician’s license, shall be construed as action against the physician’s license.

       
       

       * * *

       
       

       (kk) Failing to report to the board, in writing, within 30 days if action as defined in paragraph (b) has been taken against one’s license to practice medicine in another state, territory, or country.

       
       

11. In his Proposed Recommended Order, Respondent admitted violations of the subsections charged in the Administrative Complaint. Even without his admission, there is clear and convincing evidence to support the conclusion that he has violated section 458.331(1)(b) and (kk).

12. Respondent appears more concerned that Petitioner will consider as true the statements in the California orders regarding the underlying facts supporting the orders entered, noting that the Interim Suspension Order was entered based upon affidavits and argument, and that the Board Order was entered by virtue of a

    
    

    stipulation as opposed to an evidentiary hearing. However, section 458.331(1)(b) makes the fact that one’s license has been disciplined the basis for action in Florida: the underlying allegations are not re-litigated here. Rife v. Dep’t of Prof’l Reg., 638 So. 2d 542, 543 (Fla. 2d DCA 1994). The Interim Suspension Order constitutes action against Respondent’s license, as defined in section 458.331(1)(b), in that by the terms of the Order, Respondent’s license was suspended. Moreover, in the Stipulated Settlement and Disciplinary Order, which Respondent signed, he acknowledged that the agency would be able to establish a prima facie case with respect to the allegations made in the Second Amended Accusation. While the undersigned makes no finding as to the actual facts giving rise to the California action, it is clear that the California licensing agency had a basis to take action against his license, thus giving rise to a violation of section 458.331(1)(b), alleged in Count One.

13. With respect to the failure to report the California action alleged as a violation of section 458.331(1)(k), there is clear and convincing evidence that Respondent did not report the Interim Suspension Order to the Florida Board of Medicine. Respondent’s claim that he was unable to report due to hospitalization and injury is not credible. Moreover, the fact that the Federation of State Licensing Boards reported the California action to Florida does not relieve Respondent of his

    
    

    statutory duty to report. The Department proved the allegations in Count Two.

14. The Board of Medicine has adopted Disciplinary Guidelines in accordance with section 456.079, Florida Statutes, for the purpose of notifying the public of the range of penalties that can be expected for violations of section 458.331 and the rules adopted by the Board of Medicine. For the violation of section 458.331(1)(b), Florida Administrative Code Rule 64B8- 8.001(2)(b) states that the appropriate penalty ranges 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 licensee is unencumbered in the jurisdiction in which the disciplinary action was originally taken, and an administrative fine ranging from $1,000 to $5,000.” For failure to report disciplinary action by another jurisdiction, the penalty ranges from an administrative fine of $2,000 to $5,000; 50-100 hours of community service; to denial or revocation of license and a $5,000 fine. Rule 64B8- 8.001(2)(kk).

15. In determining what constitutes a comparable violation in Florida, the Department contends that all of the multiple violations in the Second Amended Accusation stem from Respondent’s impairment. If the Department had filed an Administrative Complaint against Respondent in Florida alleging a violation of

    
    

    section 458.331(1)(s), the recommended penalty would range from probation, 50 to 100 hours of community service, to denial or indefinite suspension until the licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation, and an administrative fine from $1,000 to $5,000.

16. Given the charges listed in the California Second Amended Accusation, the Department’s approach is fair. Respondent is not practicing, and but testified that he has contacted PRN for services. A penalty designed for remedial purposes, consistent with the decision in Boedy v. Department of Professional

    Regulation, 463 So. 2d 215 (Fla. 1985), is appropriate here.

    
    

17. Finally, Respondent has requested that the Department’s Proposed Recommended Order be removed from DOAH’s website. Respondent cites no authority for the removal of this document, which is not exempt from chapter 119, Florida Statutes, from the website. His request is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent violated subsections 458.331(1)(b) and (kk), Florida Statutes, as charged in the Amended Administrative Complaint. It is further recommended that Respondent’s license in Florida be suspended until such time as Respondent demonstrates the ability to practice medicine with

reasonable skill and safety, followed by probation with such terms as the Board deems appropriate. Respondent’s demonstration of the ability to practice with reasonable skill and safety shall include an evaluation by a board-certified psychiatrist approved by PRN and compliance with any recommendations PRN may make as a result of that evaluation.

DONE AND ENTERED this 29th day of July, 2013, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2013.

ENDNOTE

1/ Although section 458.331 was amended during the 2011 legislative session, none of the amendments affected the subsections at issue in this proceeding.

COPIES FURNISHED:

Drew E. Fenton, M.D. Apartment 1007

6650 Franklin Avenue

Los Angeles, California 90028

Thomas J. Morton, Esquire Prosecution Services Unit Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399

Allison M. Dudley, Executive Director Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel 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 this case.

Docket for Case No: 12-003594PL

Orders for Case No: 12-003594PL