07-002864PL Department Of Health, Board Of Chiropractic Medicine vs. Robert Paul Catanese, D.C. Status: Closed Recommended Order on Wednesday, December 19, 2007.

Summary: Respondent`s conviction of Federal conspiracy to commit health care fraud directly related to his practice of chiropractic medicine in violation of Sections 456.072(1)(c) and 460.413(1)(c), Florida Statutes.

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

A. 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.

B. The Indictment and Conviction .

3. 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.

4. 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.

5. 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.

6. 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.

. . . .

7. 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.”

8. 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.

9. 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.

. . . .

10. 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.

Q. 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.

11. 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.

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

Practice of Medicine .

12. 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.

13. 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.

14. The crime for which Dr. Catanese was convicted is a

crime that “directly relates to the practice of chiropractic

medicine.”

CONCLUSIONS OF LAW

A. Jurisdiction .

15. 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).

B. The Charges of the Administrative Complaint, as

Amended .

16. 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.

17. 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.

18. 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.

C. The Burden and Standard of Proof .

19. 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.").

20. 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).

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

21. 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.

22. 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.

23. 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.

24. The evidence proved clearly and convincingly that

Dr. Catanese has violated Section 460.413(1)(c), Florida

Statutes.

E. The Appropriate Penalty .

25. 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).

26. 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.

27. 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:

(a) The danger to the public;

(b) The number of unrelated and distinct

offenses;

(c) The actual damage, physical or

otherwise, to the patient(s);

(d) The length of time since the date of

the last violation(s);

(e) The length of time the licensee has

practiced his or her profession;

(f) Prior discipline imposed upon the

licensee;

(g) The deterrent effect of the penalty

imposed;

(h) The effect of the penalty upon the

licensee’s livelihood;

(i) Rehabilitation efforts of the

licensee including remorse, restitution, and

corrective actions;

(j) Efforts of the licensee to correct or

stop violations or failure of the licensee

to correct or stop violations;

(k) Related violations against the

licensee in another state, including

findings of guilt or innocence, penalties

imposed and penalties served;

(l) The actual negligence of the licensee

pertaining to any violation;

(m) Any other mitigating or aggravating

circumstances.

28. 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.

29. 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

R. 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.