Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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/ 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. 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. 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.
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.
The Issue The issues in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.
Findings Of Fact The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.) On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.
Recommendation Accordingly, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less. DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 3rd day of July, 1989. COPIES FURNISHED: Jonathan King, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Vijay Sakhuja, M.D. 120 Secor Drive Port Washington, New York 11050 Vijay Sakhuja, M.D. 90-10 Sutphin Boulevard Jamaica, New York 11435 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 89-2296 DOAH CASE NO. 88-4658 DEPARTMENT OF PROFESSIONAL REGULATION, Appellee. / Opinion filed October 10, 1990. Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant. Lisa S. Nelson, Department of Professional Regulation, for appellee. WENTWORTH, J. Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed. Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied. The order increasing the recommended penalty recites that: Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida. Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty. Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989). The order appealed is reversed and the cause remanded. MINER and WOLF, JJ., CONCUR.
The Issue The issue to be determined is whether Respondent has violated section 458.331(1)(b), (kk), and (nn), Florida Statutes (2011), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Respondent is a medical doctor licensed in the State of Florida, having been issued license number ME 89113. Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is also licensed as a medical doctor in the State of New Jersey. The Department of Law and Public Safety, Division of Consumer Affairs, New Jersey Board of Medical Examiners (New Jersey Board) is the licensing authority regulating the practice of medicine in the State of New Jersey. On or about February 21, 2012, the New Jersey Board entered an Order of Automatic Suspension of Respondent’s New Jersey medical license. The basis for the Order was Respondent’s purported failure to comply with a Private Letter Agreement previously entered between Respondent and the New Jersey Board, in that she allegedly failed to undergo an independent psychiatric evaluation and failed to provide required psychiatric reports to the state’s Physician Assistance Program (PAP).2/ The action by the New Jersey Board constitutes action against Respondent’s medical license by the licensing authority of another jurisdiction. Respondent did not report the action against her New Jersey license to the Florida Board of Medicine on or before March 23, 2012, or within 30 days of the action against her license. When documents are received by the Department, they are imaged into the Department’s system. Mail for the licensing unit is picked up several times a day, and all documents are indexed by the licensee’s license number. A licensee can check to see if documents are received by contacting the Department by telephone or e-mail. As of the week before the hearing, no information regarding Dr. Ackerman had been received by the Department from Dr. Ackerman. Respondent claims that she notified the Board by both United States Mail and by certified mail of the action against her New Jersey license. A copy of the letter she claims to have sent is Respondent’s Exhibit 1. This letter is dated March 2, 2012, is not signed, does not contain her license number in Florida or New Jersey, and is addressed to “Florida License Board.” The document does not include an address beyond Tallahassee, Florida. No zip code is included. Dr. Ackerman could not say whether she had a receipt for the certified mail, only that she probably “had it somewhere.” She could not identify who, if anyone, signed for it. When asked for the address where she mailed the letter, Dr. Ackerman said, after a considerable pause, 452 Bald Cypress Way, and claimed she knew that address “off the top of her head.”3/ The copy admitted into evidence only reflects a faxed date of March 22, 2014, two days before the hearing.4/ By contrast, Board staff testified credibly as to the process for logging mail at the Department, and that no notification had been received from Dr. Ackerman. While staff acknowledged that it is “possible” for mail to come to the Department and not be routed appropriately, the more persuasive evidence in this case is that the Board staff received nothing from Dr. Ackerman. Respondent’s claim that both copies of her letter somehow slipped through the cracks is simply not believable. Moreover, Dr. Ackerman is a physician. As such, she is presumed to be a relatively intelligent person, capable of providing appropriate notification to the Board. The docket and evidentiary record in this case demonstrate that when she wants to get a message across, she is capable of doing so (and equally capable of avoiding answering a direct question if it is not to her advantage). Her claim that she notified the Board of the action against her license in New Jersey is not credible, and is rejected. Dr. Ackerman also did not update her practitioner profile. Practitioner profiles can be updated by faxing the updated information, using the fax number available on-line; by mailing the information to the Department; or by logging into the practitioner profile database using the licensee’s specific log- in ID and password. Dr. Ackerman did none of those.
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 has violated section 458.331(1)(b), (kk), and (nn). In addition, it is recommended that the Board impose the following penalty: a reprimand of Respondent’s license to practice medicine; an administrative fine of $5,000; suspension of Respondent’s license to practice medicine until such time as Respondent demonstrates that her license in New Jersey has been reinstated and demonstrates the ability to practice medicine with reasonable skill and safety; and reservation of jurisdiction by the Board to impose a period of probation should Respondent successfully petition the Board for reinstatement and demonstrate compliance with the terms described in recommendation three. DONE AND ENTERED this 15th day of May, 2014, 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 15th day of May, 2014.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent (Ex. 1). The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. _ The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent’s assisted living facility license is SURRENDERED. The Respondent agrees not to seek initial licensure nor operate any facility licensed by the Agency for a period of 5 years from the date of execution of this Agreement. 3. An administrative fine of $13,500.00 is imposed against the Respondent, but $13,000.00 of the fine is STAYED for purposes of collection as long as the Respondent does not seek any new type of licensure from the Agency. In the event Respondent seeks licensure after the period set forth above, the Respondent will pay the $13,000.00 before any application for licensure can be considered. 4. The Respondent shall pay the Agency $500.00. If full payment has been made, the cancelled check acts as receipt of payment. If full payment has not been made, payment is due within Filed July 8, 2013 11:00 AM Division of Administrative Hearings 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. The Petitioner is responsible for any refunds that may be due to any clients. 6. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 3 day of ane4 , 2013. dministration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct Sopot this Final Order was served on the below-named 3 day of wa , 2013. persons by the method designated on this Jan Mills Facilities Intake Unit (Electronic Mail) Richard Shoop, Agency Clen Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Theresa DeCanio, Field Office Manager Local Field Office Agency for Health Care Administration Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Suzanne Suarez Hurley Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Eva Tomines, Owner/Administrator Golden Haven, LLC d/b/a Golden Haven 10805 William and Mary Court Orlando, FL 32821 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
