13-003375PL Department Of Health, Board Of Medicine vs. Leonard R. Marquez Garcia, M.D. Status: Closed Recommended Order on Tuesday, January 14, 2014.

Summary: That the Board of Medicine enter a final order imposing on Respondent a two-year suspension; a $1,000.00 administrative fine; and a one-hour lecture on the reporting requirements of a temporary certificate for practice in areas of critical need.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 13 - 3375PL

LEONARD R. MARQUEZ GARCIA, M.D.,

Respondent.

/

RECOMMENDED ORDER

Thi s case came before Administrative Law Judge Todd P.

Resavage for final hearing by video teleconference on

November, 1, 2013, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Marisa G. Button, Es quire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Mario A. Machado, Esquire

Avelino J. Gonzalez, P.A.

6780 Coral Way, Second Floor

Miami, Florida 33155

STATEM ENT OF THE ISSUE

Whether Respondent, a medical doctor, practiced beyond the

scope of his temporary certification and/or failed to notify the

Board of Medicine of changes in employment, as Petitioner

alleges; if so, whether (and what) disciplinary measures should

be taken against Respondent ' s temporary license, which authorizes

him to practice only in areas of critical need.

PRELIMINARY STATEMENT

On July 23, 2013, Petitioner, Department of Health, issued

an Administrative Complaint ( " Complaint " ) against Re spondent,

Leonardo F. Marquez Garcia, M.D. On August 1, 2013, Respondent

filed an Election of Rights, disputing certain material facts

alleged in the Complaint and requesting an administrative

hearing. On September 10, 2013, Petitioner referred the matte r

to the Division of Administrative Hearings ( " DOAH " ).

Administrative Law Judge John G. Van Laningham was assigned

to the matter, and the final hearing was scheduled for

November 14, 2013. On November 13, 2013, this case was

transferred to the undersi gned for all further proceedings.

The parties entered into a Joint Pre - hearing Stipulation and

stipulated to certain facts contained in Section E of the Joint

Pre - hearing Stipulation. 1 / To the extent relevant, those facts

have been incorporated in this Recommended Order.

Both parties were represented by counsel at the hearing,

which went forward as planned. The Department presented the

testimony of Chandra Prine, JoAnne Trexler, Robert Radin, Jack

Tucker, and Kevin Caswell (by deposition) , and Petition er ' s

Exhibits 1 - 11 and 13 were admitted without objection. Respondent

testified on his own behalf. Respondent did not offer any

exhibits that were admitted into evidence.

The final hearing Transcript was filed on December 12, 2013.

Petition er and Resp ondent timely filed p roposed recommended

orders ("PROs") , which were considered in preparing this

Recommended Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged violation.

FINDIN GS OF FACT

1. At all times relevant to this case, Respondent held a

temporary conditional certification to practice as a medical

doctor in an area of critical need ( " ACN " ) within th e s tate of

Florida, having been issued license number ACN 313.

2. Pet itioner has regulatory jurisdiction over licensed

physicians such as Respondent . In particular, Petitioner is

authorized to file and prosecute an administrative complaint

against a physician, as it has done in this instance, when a

panel of the Board of M edicine has found that probable cause

exists to suspect that the physician has committed a

disciplinable offense.

3. Here, Petitioner alleges that Respondent committed three

such offenses. In the three - count Complaint, Petitioner c harges

that Responden t violated section 458.331(1)(g), Florida Statutes,

" by failing to perform any statutory or legal obligation placed

upon a licensed physician " ; section 458.331(1)(v) by " practicing

or offering to practice beyond the scope permitted by law or

accepting and performing professional responsibilities which the

licensee knows or has reason to know that he is not competent to

p erform " ; and section 458.331(1)(m) by " violating any provision

of Chapter 458 or Chapter 456, or any rules adopted pursuant

thereto. "

4. Respondent is certified to practice medicine pursuant to

a Rear Admiral Leroy Collins, Jr. , Temporary Certification to

practice medicine only in ACNs that have been approved pursuant

to section 458.315(3), Florida Statutes.

5. A doctor certified to pr actice in an ACN receives a

temporary certificate from the Board of Medicine pursuant to

section 458.315, Florida Statutes.

6. The certificate is temporary and conditional. Section

458.315(3) requires that an ACN certified physician practice in

an ACN ; a county health department; correctional facility;

Department of Veterans Affairs clinic; comm unity health center

funded by section 329, section 330, or section 340 of the United

States Public Health Services Act; or other agency or institution

that is a pproved by the State Surgeon General and provides health

care to meet the needs of underserved populations in this state;

or for a limited time to addre ss critical physician - specialty,

demographic, or geographic needs for this state ' s physician

workforce a s determined by the State Surgeon General.

7. Once issued, the certified ACN physician can practice in

any Surgeon General approved area of critical need facility;

however, within 30 days of accepting employment , the ACN

physician must notify the Board of Health of all approved

institutions in which the licensee practices and of all approved

institutions where practice privileges have been denied.

8. On or about September 24, 2008, Respondent submitted to

Petitioner an application for temporary certif icate to practice

in an ACN . Respondent was notified via correspondence dated

June 11, 2009, that his application was approved, and that he had

been issued license number ACN 313.

9. The June 11, 2009 , correspondence summarily advised

Respondent of t he following conditions and limitations on his

license:

Your license limits your practice to Project

Access Foundation Medical Clinics, 8000

Biscayne Blvd., Miami, FL 33188. Practicing

with that limitation is a very important

statutory and legal require ment. Notifying

this office of your current specific practice

location is equally important. Your license

will expire on 1/31/2010.

10. From June 11, 2009 through January 26, 2010, Respondent

did not notify Petitioner that he had accepted employment a t any

medical facility.

11. On or about Januar y 26, 2010, Petitioner processed

Respondent ' s ACN renewal application. In the " Financial

Responsibility Form " included within the renewal application,

Respondent checked the box that provides , " I do not pr actice

medicine in the State of Florida. " N earby , Respondent wrote , " In

this moment. " Respondent ' s ACN license was renewed on or about

January 29, 2010, and was valid through January 31, 2012.

12. On or about November 17, 2010, the Agency for Health

Care Administration ( " ACHA " ) was notified th at Respondent was

acquiring 100 percent of the shares of stock for Global

Rehabilitation Center, Inc. ( " Global " ). The undisputed evidence

establishes that Respondent practiced medicine at Global .

Respondent did not disclose this practice location to Petitioner

until September 2012, during the course of an investigation. At

that time, Respondent divulged that he had work ed at Global for

approximately two years.

13. It is further undisputed that, a t the time R espondent

acquired Global, and all material times subsequent, Global was

not an ACN approved facility . Respondent never applied to have

Global placed on the ACN approved facility list.

14. Respondent practiced medicine at another facility,

Policlinico P astorita, Inc. ( " Policlinico " ) , from August 2009 to

the present. Respondent first notified Petitioner of this

practice location on or about January 10, 2012, as part of his

renewal package. Policlinico did not become an approved ACN

facility until Octobe r 8, 2012.

15. The undisputed evidence established that Respondent

also practiced medicine at Injury Rehabilitation Center , Inc . 2 /

Said facility was never an approved ACN facility. Respondent did

not notify Petitioner of this practice location until September

2012, during the course of an investigation.

16. On May 18, 2011, Archy ' s Diagnostic Center was approved

as an ACN facility. On or about January 23, 2012, Respondent, as

part of his license renewal process, advised Petitioner that his

current practice location was Archy ' s Diagnostic Center.

17. Respondent, in his PRO, makes the following

concessions: (1) that he failed to notify the Board of Medicine

within 30 days of accepting employment at either an ACN approved

or non - approved facility ; (2) that he failed to use his ACN

temporary certifi cate to work exclusively at ACN - approved

facilities; and (3) that he did not comply with sections

458.315(4)(a), 458.331(1)(g), and 458.331(1)(v).

18. Respondent, in mitigation, contends that he neve r

attempted to evade the reporting requirements. Respondent

testified that he initially believed Policlinco was an ACN

approved facility because of the demographics of the practice and

because the owner advised him that he could practice medicine at

that facility . On this point, Respondent further testified as

follows: " [B]ut I ignored, I didn ' t know that I had to report

myself to Tallahassee to the health department but later on I

learned that I had to do that. "

19. Concerning Global, Respondent tes tified that apparently

he just forgot about the requirements of ACN approval or never

thought of the requireme nts. The undersigned finds Respondent ' s

testimony that he was unaware of the reporting requirements of

his ACN license is not credible.

CO NCLUS IONS OF LAW

20 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569, and 120.57(1),

Florida Statutes.

21 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is pe nal in nature. State

ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491

(Fla. 1973). Accordingly, to impose discipline, Petitioner must

prove the charges against Respondent by clear and convincing

evidence. Dep ' t of Banking & Fin., Div. of S ec. & Investor Prot.

v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34 (Fla. 1996)(citing

Ferris v. Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987)); Nair

v. Dep ' t of Bus. & Prof ' l Reg., Bd. of Med. , 654 So. 2d 205, 207

(Fla. 1st DCA 1995).

22 . Regarding th e standard of proof, in Slomowitz v.

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

developed a " workable definition of clear and convincing

evidence " and found that , of necessity , such a definition would

need to contain " both qualitative and q uantitative standards. "

The Court held that:

[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 testimony must

be precise and explicit and t he witnesses

must be lacking 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 a firm belief or conviction, without

hesitancy, as to the truth of the allegations

sought to be establis hed.

Id. The Florida Supreme Court later adopted the Slomowitz

court ' s description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District Court

of Appeal also has followed the Slomowitz test, adding the

interpretive comment that " [a]lthough this standard of proof may

be met where the evidence is in conflict . . . it seems to

preclude evidence that is ambiguous. " Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991);

rev. denied , 599 So. 2d 1279 (Fla. 1992)(citations omitted).

23. Section 458.315, entitled " Temporary certificate for

practice in areas of critical need, " provides, in pertinent part

as follows:

(1) A certificate issued pursuant to this

section may be ci ted as the " Rear Admiral

LeRoy Collins, Jr., Temporary Certificate for

Practice in Areas of Critical Need. "

* * *

(3) A certificate may be issued to a

physician who:

(a) Will practice in an area of critical

need;

(b) Will be employed by or practice in a

county health department; correctional

facility; Department of Veterans ' Affairs

clinic; community health center funded by s.

329, s. 330, or s. 340 of the United States

Public Health Services Act; or other agency

or institution that is approved by th e State

Surgeon General and provides health care to

meet the needs of underserved populations in

this state; or

(c) Will practice for a limited time to

address critical physician - specialty,

demographic, or geographic needs for this

state ' s physician workf orce as determined by

the State Surgeon General.

(4) The Board of Medicine may issue this

temporary certificate with the following

restrictions:

(a) The State Surgeon General shall

determine the areas of critical need. Such

areas include, but are not l imited to, health

professional shortage areas designated by the

United States Department of Health and Human

Services.

1. A recipient of a temporary certificate

for practice in areas of critical need may

use the certificate to work for any approved

entit y in any area of critical need or as

authorized by the State Surgeon General.

2. The recipient of a temporary certificate

for practice in areas of critical need shall,

within 30 days after accepting employment,

notify the board of all approved institutio ns

in which the licensee practices and of all

approved institutions where practice

privileges have been denied.

24 . In Count I of the Complaint, Petitioner charged

Respondent with violations of section 458.331(1)(g). Section

458.331(1)(g) provides as fo llows:

Grounds for disciplinary action; action by

the board and department. Ï

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(g) Failing to perform any statutory or

legal obligation placed upon a licensed

physician.

25. Petitioner alleges Respondent violated this section by

failing to notify the Board of Medicine within 30 days of

accepting employment at an ACN approved facility; failing to

notify the Board of Medicine w ithin 30 days of accepting

employment at non - ACN - approved facilities; and failing to use his

ACN temporary certification to work exclusively at ACN approved

facilities. As noted above, Respondent concedes he violated

section 458.331(1)(g) as alleged above . The undersigned

concludes that Petitioner established by clear and convincing

evidence that Respondent violated section 458.331(1)(g).

26. In Count II of the Complaint, Petitioner charged

Respondent with violating section 458.331(1)(v). Section

458 .331(1)(v) provides, in pertinent part, as follows:

Grounds for disciplinary action; action by

the board and department. Ï

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(v ) Practicing or offering to practice

beyond the scope permitted by law or

accepting and performing professional

responsibilities which the licensee knows or

has reason to know that he or she is not

competent to perform.

27. Petitioner alleges that Resp ondent practiced beyond the

scope authorized by law when he practiced beyond the scope

allowed pursuant to section 458.315. Respondent concedes he

violated section 458.331(1)(v) as alleged above. The undersigned

concludes that Petitioner established by c lear and convincing

evidence that Respondent violated section 458.331(1)(v).

28. Petitioner alleges in Count III of the Complaint that

Respondent violated section 458.331(1 )(nn). Said section

provides as follows:

Grounds for disciplinary action; acti on by

the board and department. Ï

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(nn) Violating any provision of this chapter

or chapter 456, or any rules adopted pursuant

thereto.

29. Petitioner alleges that Respondent violated section

458.331(1)(nn) by violating the requirements and limitations of

section 458.315. Respondent concedes that he violated section

458.315 by " failing to notify Petitioner of all the facilitie s at

which he practiced. " The undersigned concludes Petitioner

established by clear and convincing evidence that Respondent

violated section 458.331(1)(nn) by violating section 458.315.

30 . The Board of Medicine imposes penalties upon licensees

in acco rdance with the disciplinary guidelines prescribed in

Florida Administrative Code Rule 64B8 - 8.001. The range of

penalties for a first offense involving section 45 8.331(1)(g) is

set forth in rule 64B8 - 8.001(2)( g ) , as follows:

For any offense not specifica lly listed

herein, based upon the severity of the

offense and the potential for patient harm,

from a letter of concern to revocation or

denial, and an administrative fine from

$1,000.00 to $10,000.00, unless otherwise

provided by law.

31. The range of p enalties for a first offense involving

section 458.331(1)(v) is from two years ' suspension to revocation

or denial , and an administrative fine fro m $1,000.00 to

$10,000.00. Fla. Admin. Code R. 64B8 - 8.001(2)(v). The range of

penalties for a first offense involving section 458.331(1)(nn) is

f rom a reprimand to revocation or denial , and an administrative

fine from $1,000.00 to $10,000.00.

32 . Rule 64B8 - 8.001(3) provides that, in applying the

penalty guidelines, the following aggravating and mitigating

cir cumstances shall be considered:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the offense:

no restraints, or legal constraints;

(c) The numb er of counts or separate

offenses established;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction and

the len gth of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter or

sale, by a licensee. In such case s, the

Board will deviate from the penalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged with

violating the standard of care pursuant to

Section 458.331(1)(t), F.S., but the

licensee, who is a lso the records owner

pursuant to Section 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

3 3 . Having considered the potential aggravating and

mitigating factors, the undersigned does not f ind compelling

reasons to deviate from the guidelines and, therefore, recommends

that the Board of Medicine impose a penalty that falls within the

recommended range.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECO MMENDED that the Board of Medicine enter a final

order finding Respondent guilty of violating section

458.331(1)(g), (v), and (nn); and imposing the following

penalties: a two - year suspension, a $1,000.00 administrative

fine, a nd a one - hour lecture o n the reporting requirements of a

t emporary certificate for practice in areas of critical need.

DONE AND ENTERED this 13th day of January , 201 4 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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 13th day of January , 2 014 .

ENDNOTES

1 / The parties also stipulated to modification of several

scrivener's errors contained in the Complaint as well as the Pre -

hearing Stipulation and further stipulated to Re spondentÓs

address of record.

2 / No evidence was presented concerning RespondentÓs dates of

employment at Injury Rehabilitation Center, Inc.; however,

Petitioner presented evidence that demonstrates Respondent was

working as a medical doctor at that loc ation in February and

March, 2012.

COPIES FURNISHED :

Diane K. Kiesling, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

Avelino J. Gonzalez, Esquire

Avelino Gonzalez, P.A.

Law Center

6780 Coral Way

Miami, Flori da 33155

Allison M. Dudley, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

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.