12-003594PL Department Of Health, Board Of Medicine vs. Drew E. Fenton, M.D. Status: Closed Recommended Order on Monday, July 29, 2013.

Summary: Petitioner proved that Respondent's California license was subject to discipline and he did not report the discipline to Florida within 30 days.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE ,

Petitioner ,

vs. Case No. 12 - 3594PL

DREW E. FENTON, M.D. ,

Respondent .

/

RECOMMENDED ORDER

O n June 18, 20 13, 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 He alth

(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 Ó s licensing

au thority 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 for m 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 schedu led for hearing January 16,

2013. It was continued twice a nd 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. A t 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 Compla i nt with the Division on

June 14, 2013.

At hearing, the Department prese nted the testimony of

Allison Dudley and Shondra Watson, and Petitioner Ó s Exhibits 1 - 4,

7, and 9 were admitted into evidence. Respondent testified on

his behalf and Respondent Ó 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.

FINDING S 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 , seek ing to suspend, pending a full hearing on

the merits, Respondent Ó s physician Ó s and surgeon Ó 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 Par te Petition ; suspended Respondent Ó s California

Physician Ó s and Surgeon Ó 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 Ord er,

authorizes licensure suspension and the

imposition of other conditions pending a

resolution of underlying disciplinary

allegations. Subdivision (a) of the statute

provides that: Ð [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 issue d will endanger the public

health, safety, or welfare. Ñ Subdivision

(e) provides: Ð [t]he administrative law

judge shall grant the interim order where,

in the exercise of discretion, the

administrati ve law judge concludes that

(1) There is a reasonable pr obability 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. Ñ

7. The Interim Suspension Order granted t he Petition and

suspended Respondent Ó 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:

9. Respondent does not contest that, at an

administrative hearing, complainant could

establ ish 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.

10 . 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 impair ment 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 se ction 2236; and general unprofessional conduct, in

violation of section 2234.

11. The Board Order revoked Respondent Ó s Physician Ó s and

Surgeon Ó s Certificate . T he revocation was stayed , however, and

Respondent was placed on probation for a period of sev en 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 practiti oner; 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 Respo ndent Ó s

practice while on probation; and a prohibition against supervising

physician assistants during the course of probation.

1 2 . 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.

1 3 . The Board received notice from the State Federation of

Medical Boards that another state had taken a ction , i.e . , that the

Interim Suspension Order had been issued by the State of

California.

1 4 . There is no allegation, nor was any evidence presented,

that Respondent has violated the terms of the Board Order entered

in California.

1 5 . 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 Ó Resource Network (PRN). However, no contract

with PRN was entered into evidence.

CONCLUSIONS OF LAW

1 6 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action pursuant to sections 120.569 and 1 20.57(1), Florida

Statutes (2013).

1 7 . This is a proceeding whereby the Department seeks to

impose discipline against Respondent Ó s license to practice

medicine. The Department has the burden to prove the allegations

in the Amended Administrative Complai nt by clear and convincing

evidence. Dep Ó 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

t he 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 th e

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. 4 th DCA 1983)). This

burden of proof may be met where the evidence is in conflict;

however, Ð it seems to preclude evidence that is ambiguous. Ñ

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988

(Fla. 1 st DCA 1991).

1 8 . The Amended Administrative Complaint a lleges

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 Ó s

ac ceptance of a physician Ó 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 Ó s license, shall be construed as

action against the physician Ó 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 Ó s license to practice medicine in

another state, territory, or country.

1 9 . In his Propose d 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 ).

20 . 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 affidavit s 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 Ó s license has been

disciplined the basis for action in Florida: the underlying

al legations are not re - litigated here. Rife v. Dep Ó t of Prof Ó l

Reg. , 638 So. 2d 542, 543 (Fla. 2d DCA 1994). The Interim

Suspension Order constitutes action against Respondent Ó s license,

as defined in section 458.331(1)(b), in that by the terms of the

Orde r, Respondent Ó 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

se ction 458.331(1)(b), alleged in Count One.

21 . 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 Ord er to the Florida Board of Medicine.

Respondent Ó 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 re lieve Respondent of his

statutory duty to report. The Department proved the allegations

in Count Two.

22 . The Board of Medicine has adopted Disciplinary

Guidelines in accordance with section 456.079, Florida Statutes,

for the purpose of notifying the pu blic 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

Ð 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. Ñ For failure to report disciplinary action

by another jurisdiction, the penalty ranges from an administrative

fine of $2,000 to $5,000; 50 - 100 h ours of community service; to

denial or revocation of license and a $5,000 fine. Rule 64B8 -

8.001(2)(kk).

23 . In determining what constitutes a comparable violation

in Florida, the Department contends that all of the multiple

violations in the Second Ame nded Accusation stem from Respondent Ó s

impairment. If the Department had filed an Administrative

Complaint aga inst 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.

24 . Given the charges listed in the California Second

Amended Accusation, the Department Ó 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. Depar tment of Professional

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

25 . Finally, Respondent has requested that the Department Ó s

Proposed Recommended Order be removed from DOAH Ó s website.

Respondent cites no authority for the removal of th is 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 Ó s license in Florida be suspended until such time as

Respondent dem onstrates the ability to practice medicine with

reasonable skill and safety, followed by probation with such

terms as the Board deems appropriate. Respondent Ó s demonstration

of the ability to practice with reasonable skill and safety shall

include an eval uation 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

D ivision 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 Di rector

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 SUBMI T 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.